Qurnell Law School Library
CORNELL UNIVERSITY LIBRARY

IEA A

24
A TREATISE

ON THE

LAW OF EVIDENCE.

BY

SIMON _GREENLEAF, LL. D.

EMERITUS PROFESSOR OF LAW IN HARVARD UNIVERSITY.

Quorsum enim sacre leges invent et sancite fuere, nisi ut ex ipsarum justitia
unicuique jus suum tribuatur?—-Mascarpus ex ULrian.

4

VOLUME II.

NINTH EDITION.

BOSTON:
LITTLE, BROWN AND COMPANY.

M pccc LXII.
Bars ta

Entered according to Act of Congress, in the year 1858,
By JAMES GREENLEAF,
in the Clerk’s Office of the District Court of the District of Massachusetts.

Entered according to Act of Congress, in the year 1863,
By James GREENLEAF,
in the Clerk’s Office of the District Court of the District of Massachusetts.

RIVERSIDE, CAMBRIDGE:
PRINTED BY H. Q@ HOUGHTON.
ADVERTISEMENT TO THE SEVENTH EDITION.

In the preparation of this volume for the press, there have
been made therein references to, and in many instances,
notes of, the more recent English and American decisions
under the various Titles. The additions, amounting to over
seventy-five pages, appear in the notes, and are included in
brackets, thus[ ]. Itis hoped that the Profession will find
the work carefully done, and that the volume will thereby be

more serviceable.

Bosron, February, 1858.
ADVERTISEMENT TO THE FIFTH EDITION.

Tuis edition was prepared for the press by the lamented
Author, and is given to the Profession as left by him at his
death. Whether he had completed its preparation is not
known, but the additional notes were left in the finished and
perfect state which characterized all his works, and give
reason to believe that his labors were done. The additions
are not numerous, but they possess a peculiar interest, as
being the last contributions of the Author to that science
which his labors through life had done so much to illustrate.

Boston, January, 1854.

a*
CONTENTS.

PART IV.

Or THE EVIDENCE REQUISITE IN CERTAIN PARTICULAR ACTIONS

‘AND Issues at Common Law.

PRELIMINARY OBSERVATIONS
ABATEMENT

AcCcORD AND SATISFACTION

Account

ADULTERY

AGENCY 3
ARBITRATION AND AWARD
ASSAULT AND BatTErY-
ASSUMPSIT

ATTORNEYS

BastTaRDY

Bits or ExcHancEe
CARRIERS

CasE .

CovENANT

Custom aNnD USAGE
DaMaGEs

DEATH

Dest

DEED

Duress .

EsECTMENT

Executors AND ADMINISTRATORS

Sections
j-17
18—27
28-33 —
84-89
40-58
59-68 a
69-81
82-100
101-136 a
187-149

. 150-153
153 a—-207
208-222 a
223-232 b
233-247
248-252
253-278

- 278 a,—278 h

- 279-292
293-300
. 801-3802
803-337
» 338-352
viii

Her
Inrancy
INSANITY
INSURANCE
LipeL AnD SLANDER
LIMITATIONS

Mauicious Prosecution

MarRIAGE
NoISANCE
PARTNERSHIP
Patents 3
PaYMENT
PRESCRIPTION

Reat Actions . A

ReEPLEVIN
SEDUCTION
SHERIFF
TENDER
TRESPASS
TROVER
Waste

Way —
WILLS 7

CONTENTS.

Sections
853-361

- 862-368

869-374

. 875-409

410-429

- 4380-448

449-459

- 460-464

465-476

- 477-486

487-515

- 516-536

537-546

- 547-559

560-570

. 571-579

580-599
600-611 a
612-635 a

636-649

650-656

657-665

666-695
INDEX TO CASES CITED.

A.
Section
Abbe v. Rood 67, 141
Abbey v. Lill 193
Abbot v. Dexter 71
Abel v. Potts 888
Abercrombie v. Parkhurst 562

Abithol v. Bristow 382, 384
Acerro v. Petroni 479
Ackerman v. Runyon 867
Ackland v. Pierce 191
Ackworth v. Kempe 580, 597, 621
A’Court v. Cross 442
Acton v. Blundell 467
Adam v. Kerr 296
Adams v. Balch 585
v. Chaplin 677

v. Clark 208, 637

v. Drake 518

v, Emerson 616

v. Freeman 98, 615, 627

v. Gardner 26

v. Otterback 251

v. Robinson 141
Addington v. Clode 545
v. Wilson 689

Addison v. Preston 279
v. Round 644

Addy v. Grix 677
Etna Fire Ins. Co, v. Tyler 405
Aflalo v. Fourdrinier 192
Agg v. Davies 363
Ahern v. Maguire 404, 418
Aikin v. Buck 614
Ainslie v. Wilson 113, 118
Aitkenhead v. Blades 628
Akerley v. Haines 578
Albro v. Agawam Canal Co. 2326
vo. Jaquith 2326
Alchorne v. Gomme 565, 566
Alcock v. Hopkins 520

 

Section

Alden v. Capen 531
v. Dewey 492

v. Murdock 556

v. Pearson 208, 219

Alder v. Saville 78
Alderman v. French 275
Alderson v. Clay 479483, 485
v. Langdale 523

v. Waistell 83

Aldrich v. Albee 610
Alexander v. Bonnin 627
v. Brown 602

v. McCauley 584

v. McGinn 25

v. Owen 528

v. Southey 645

v. Vane 114

Alexandria, (Mayor, &c. of,) v. _

Patten 529, 5382
Alfray v. Alfray 462
Allam'v. Heber 359
Allan v. Gomme 659
Allcock v. Ewen 440
Allcott v. Strong 484, 533
Allegre v. Maryland Ins. Co. = 251
Allen v. Blanchard 486

v. Blunt 268 a
v. Carter 615
v. Commercial Ins. Co. 892
v. Cook 128
v. Crary 560
v. Edmonson 194
v. Harris 31
v. Harrison 686
v. Hearn 286
v. Hunt 489
v. Hunter 492
v. Kemble 153 a
v. King 520
INDEX TO CASES CITED. fs

x
Section
Allen v. Lyman 279
v. McKeen 121
v. Miles 72
v. Mille 448
v. Rostain 483
v. Shed 597
v. Watson 79, 80, 81
Allentown v. Saeger 121
Allis v. Billings 369
Allison v. Rayner 142
Allport v. Meek 165
Alna v. Plummer 108
Alpass v. Watkins 124, 125
Alsager v. Close 642, 649
Alsept v. Eyles 599
Alsleger v. Erb 461
Alsop v. Commercial Ins. Co. 381
Alston v. Mechanics Ins. Co. 396
Alton v. Gilmanton 141
American Ins. Co.v. Dunham 390
Amery v. Rogers 378
Ames v. Milward 78
Amesbury v. Amesbury 111, 121
Amies v, Stevens 219
Amory v. Fairbanks 524
v. Fellows 691
v. Hamilton 66, 67
Anderson v. Anderson 45
v. Brock lla
v. Buckton 278
v. Bullock 296
v. Commonwealth 48
v. Johnson 93
v. Pitcher 384
v. Robson 156
v. Sanderson 65
v. Watson 139
v. Weston 167
Andrew v. Robinson 118
Andrews v. Askey 253, 579
v. Bartholomew 274
v. Boyd 190
v. Chadbourne 161
v. Gallison 844, 845
v. Hooper 556
v. Palmer 79
v. Vanduzer 425
Angell v. McLellan 366
Angier v. Taunton, &c. Co. 638, 649
Anous v. Redford 78
Anichini v. Anichini 52
Anonymous 147, 431
Anstey v. Dowsing 691
Anthony v. Gilbert 272
v. Harreys 627

 

, Section

Antram v. Chase 71
Appleby v. Clark 115
Appleton v. Bancroft 108
v. Fullerton 657

Arbouin v. Anderson 172
Arbuckle v. Taylor 453

Arcangelo v. Thompson 193, 383,
Arden v. Tucker 39

Argall v. Bryant 483
Argent v. Durant 625
Armfield v. Tate 367
Armington v. Larabee 627
Armory v. Delamirie 637
Arms v. Ashley 118
Armsby v. Farnham 478
v. Woodward 325
Armstrong v. Christiana 186
v. Percy 254, 256, 262

Armsworth v. 8. East. Railw. Co. 473
Arnold v. Camp 523
v. Lyman 109
v. Richmond Iron Works 369

v. Stevens 476, 557
Arthur v. Dartch 126
Arundell v. Tregono’ 452
Ash v. Marlow ~ 454
Ashley v. Ashley 537

vo. Harrison 256, 420
Ashmead v. Kellogg 640
Ashmore, Jn re 676
Aspinal v. Wake 164
Assay v. Hoover 671
Astin v. Parkin 333
Astley v. Astley 44, 52

v. Reynolds 121

v. Weldon 257, 258
Aston v. Heaven 221
Astor v. Hoyt 239

v. Miller 239

v. Union Ins. Co. 377
Atkins v. Barnwell 107, 114
v. Boardman 657, 659 a

v. Boylston, &c. Ins. Co. 382

v. Sanger 690°

v. Tredgold 344

v. Warrington 278 €

Atkinson v. Clapp lla
v. Hawdon 523

‘vy. Lain 478

Atlantic Mut. Fire Ins. Co. v. Fitz-
patrick 162
Aton v. Bolt 440

Attorney-Gen. v. Federal Street
Meeting-house 430
Attorney-Gen. v. Parnther 689, 690
INDEX TO CASES CITED.

Section

Attorney-Gen. v. Vigor 686
Attwood v. Rattenbury 167
Atwater v. Woolbridge 111,121
Atwood v. Monger 452
Aubert v. Walsh 111
Austen v. Graham 689
v. Willward 277

Austin v. Debnam 453
v. Drew 405

v. Gage 361

v. Manchester, &c. R. Co. 215

v. Rodman 112, 195

v. Sawyer 615

v. Taylor 252

v. Whitlock 296
Avarillo v. Rogers 414
Avery v. Pixley 674, 681
v. Ray 89, 267
Aveson v. Ld. Kinnaird 55
Ayer v. Bartlett 640
v. Hawkins 531 a*

v. Hutchins 115, 199, 200
Aylet v. Dodd 259
B.
Babeock v. Bryant 186
v. Montgomery Ins. Co.

404, 405

v. Thompson 111

Back v. Stacey 471
Backman v. Wright 533
Backus v. Backus 53
v. McCoy 241, 264

v. Shepherd 190

Bacon v. Brown 533
v. Charlton 600

v. Crandon 79

v. Cropsey 599

v. Page 15

v. Towne 452, 458, 454, 455,

* 457, 458

Badger v. Phinney 369, 561
Badgley v. Heald 136 a
Badlam v. Tucker 637

Bagnall v. Underwood 412, 417
Bagshaw v. Gaward 270
Bagwell v. Babe 19
v. Elliot 672
Bailéy v. Applegate 544
v. Bailey 669, 672
v. Damon 261 a
v. Massey 614

v. Porter 189 |

 

x1
Section

Bailiffs of Tewksbury v. Bicknell
544, 568
Baillie v. Ld. Inchiquin 441
Bainbridge v. Pickering 366
Baird v. Blaigrove 296
v. Cochran 207
Bakeman v. Pooler 602
Baker v. Arnold 207
v. Atlas Bank 251
v. Baker 432
v. Briggs 204
v. Carey 104
v. Dening 674
v. Fales 561
v. Freeman 61
v. Garratt 599
v. Green 254, 584, 599
v. Howell 120
v. Stackpole 529, 532, 533
v. The Hibernia 219
v. Wheeler 276
Balch v. Onion 161
Balcom »v. Richards 444
Baldney v. Ritchie 25
Baldwin v. Cole 642
v. Elphinstone 416

‘v. Western R. R. Corp. 254,

269

Bales v. Wingfield 599
Ball v. Claflin 110d
v. Taylor 296
Ballard v. Dyson 659
Ballingalls v. Gloster 181
Balston v. Baxter 31
: v. Bensted 475
Baltimore v. Norman 649
Baltimore Turnpike case 74
Bamfield v. Massey 58, 577
Banbury Peerage case 152
Banchor »v. Cilley 481
Bancroft v. Dumas 531, 533
Bander v. Snyder 528
Bangs v. Hall 440, 443
Bank of Alexandria v. Swann 189
Chillicothe v. Dodge 123

Columbia v. Lawrence 186
v. Patterson 62,

257
Geneva v. Howlett 187
Treland v. Archer 161

Kentucky v. Brooking 478
Montgomery v. Reese 261
Orange v. Brown 214
Rochester v. Gould 189
Rutland v. Barker 18
X11

Section
Bank of St. Mary v. St. John = 478
‘Troy v. Hopping 347

U. States ». Bank of
Georgia 523, 601
U. States v. Carneal 186
v. Dandridge 62
v. Hatch 202
v. Sill 156
Bannatyne v. Bannatyne 370, 689
Baptist Ch. v. Robbards 681
Barber v. Britton * 64
v. Fletcher 396
v. Root 461
in re 147
Barbour v. Nichols 261
Barclay v. Bailey 178
v. Gouch 113
v. Howell 660
v. Raine 240
Baring v. Clark 169, 518, 527
v. Henkle 391
Barker v. Bates 618
v. Braham 621
v. Cassidy » 435
v. McFerran 672
v. Miller 629
v. Packenhorn 603
v. Parker 179
v. Phenix Ins. Co. 394
v. Prentiss 136, 207.
v. Richardson 475, 545
Barkins v. Wilson 207
Barlow v. Bishop 166
v. Leckie 377
v. McIntosh 889
v. Todd 78
Barnard v. Conger 261
v. Graves 520
Barnardiston v. Chapman 646
Barnes v. Bartlett 265
v. Hatch 297
v. Holloway 114
v. Hunt 627
Barnett v. Allen 417
v. Smith 161, 520
Barnstable v. Thacher 618
Barnum v. Vandusen 635 a
Barnwall v. Church 401
Baron v. Abeel 336, 337
Barough v. White 199
Barraclough v. Johnson 660
Barrel v. Jermy 408
Barreti v. Deere 518, 606
v. Lewis 586
Barrett v. Union Mut. &. Co. 406

INDEX TO CASES CITED.

 

v. Lawrence

Section

Barrett v. Williamson 251
Barrington v. Turner 630
Barrows v. Capen 78
v. Carpenter 415

Barry v. Carothers 291a
v. Nesham 481

v. Rush 347
Bartelot v. Hawker 51,
Bartlett v. Bramhall 117,120, 265
v. Crittenden 512

v. Decreet 649

v. Emery 127

v. Walter 379

Bartley v. Richtmyer 572, 573
Barton v. Glover 258
v. Hanson 214

v. Williams 646
Barwell v. Adkins 418
Barwick v. Thompson 305
Basely v. Clarkson 622
‘Bass v. Bass 447
v. Clive 164
Basset v. Sanborn 104, 136, 518
Basten v. Butter 136
Batchelder v. Sturgis 28, 242
Bate v. Hill : 58, 577
Bateman v. Daniels 28
v. Goodyear 253

v. Joseph 195

v. Pierce 136

v. Pinder 440

Bates v. Cook 73
v. Holman 682

v. Norcross 430, 557

v. Townley 126, 128
Batley v. Catterall 173
Batson v. Donovan 220
Batterly v. Faulkner 435
Battin v. Taggart 490, 506
Battles v. Holley 541
Batton v. Watson 688 a
Bawn v. Crandon 79
Baxter v. Earl of Portsmouth 369
v. Hozier 38

v. Leland 251

v, Penniman 342

v. Taber 589

v. Taylor 663

v. Wales 529

v. Winooski Turnp. Co. 468
Bayley v. Bates ' 594
v. Bayley 669

v. Homan 31

Baylis v. Dinely 867

411
INDEX TO CASES CITED.

Section

Baynham v. Holt 126, 128

Beach v. Norton 26

v. Vandewater 483

v. Wheeler 453

Beal v. Nind 443

v. Pettit 880

Bealey v. Shaw 471, 475, 546

Bean v. Farnam 78, 79, 80

v. Mayo 242

v. Parker 292

Beane v. Yerby 675

Bearce v. Jackson 241

Beard v. Beard 687

v. Cowman 842

v. Kirk 684

Beardsley v. Knight 240

v. Maynard 275

v. Root 113

Beauchamp v. Parry 200

Beaumont v. Greathead 516

Beavan v. McDonnell 371

Beck v. Beck 440

v. Sargent 78

Beckett v. Dutton lid

Beckford v. Crutwell 209

v. Montague 584
Beckwith v. The St. Croix Man.

Co. 183

v. Sydebotham 401

v. Shordike 94

Bedford v. Hunt 492, 494

v. McKnow 579

Beeby v. Beeby 52, 58, 54

Beed v. Blandford 124

Beekman v. Satterlee 431

Beeler v. Young 365

Beers v. Robinson 109

Belknap v. Milliken * 108

v. Wendell 481

Bell v. Ansley 380

v. Bell 397

-v. Buckley 518

v. Byrne 414

v. Chaplain 109, 110

v, Cunningham 66

v. Graham 453

v. Morrison 439

v. Reed 219

v. Rowland 410

v. Smith 393

Bellinger v. Ford 339°

4 v. Kitts 6038

Belshaw v. Bush 520

Bemis v. Smith 244

Bemus v. Beekman 563

VOL. IL. 6b

 

xiii

Section
Bender v. Fromberger 264
Bennett y. Alcott 88, 278, 572, 578

v. Appleton 95

v. Deacon 421

v. Farnell 166

v. Filyaw 210

v. Hyde 269

v. Jenkins 264

v. Sharpe 676

v. Sherrod 681

v@Smith 460

Benson v. Frederick 253

v, Matsdorf 333, 337

v. Monroe 123

v. Olive 278 e

Benthall v. Judkins 161, 163

Bentley v. Bentley 346

v. Fleming 502

Benton v. Sutton _ 589

Berkeley v. Wilford 269

Berkshire Bank v. Jones + 190
Berkshire Woollen Co. v. Proc-

tor 251

Bernard v. The Commonwealth 599

v. Torrance 483

Bernardi v. Motteaux 383

Berney v. Read 71

Berolles v. Ramsay 865

Berry v. Adamson 451

v. Heard 640

Berryman v. Wise 138, 412

Bertie v. Beaumont 614

Berthon v. Loughman 897

Besford v. Saunders 367

Bessey v. Olliot 270

v. Windham 597

Best v. Strong 111

Bethell v. Moore 681

Betterbee v. Davis 604, 605

Betts v. Betts . 45

v. Gibbins 115

v. Jackson 688 a

Bevan v. Jones 584

v. Rees 604

v. Waters 192

Bevin v. Connecticut, &c. Ins. Co. 409

Beynon v. Garratt 593
Bibb v. Peyton 444
v. Thomas 681
Bickerdike v. Bollman 195
Bickford v. Page 240
v. Skewes 490

Bicknell v. Dorion 449
Biddell v. Dowse 80
Biddlesford v. Onslow 469
xiv

Section

Biddulph v. Ather , 545
Bigelow v. Hillman 614, 662
v. Jones 120, 244, 264, 619

v. Newell 78

Biggs v. Dwight 535
v. Lawrence 480
Bilbie v. Lumley 136, 393
Billinghurst v. Vickers 675
Billings v. Russell 629
Bills v. Vose 561
Bilton v. Long ® 431
Bingham v. Allport 606
v. Garnault 93

_ v. Keyes 215
Binney v. Chapman 120
Birch v. Gibbs 800
v. Stephenson 259

v. Tebbutt 531

,_ v. Wright 329
Bird v. Astock 643, 648
y. Holbrook 473

v. Randall 29, 231, 257

v. Smith 241
Birks v. Trippet 76
Birt v. Barlow 130
v. Kershaw 207
Bishop v. Chitty 523
v. Crawshay 638

v. Eagle 36

v. Little 448

v. Pentland 887, 391

v. Shillito 638

Bissel v. Price 219
Bissell v. Erwin 264
Bittner v. Brough 261
Bixby v. Brundige 449, 457

v. The Franklin Ins. Co. 378
v. Whitney 74, 610
Blachford v. Dod 454

Black v. Smith 608, 605
Blackburn v. Blackburn 423
Blackett v. Lowes 616
Blackham’s case 338
Blackham v. Pugh 421
Blackhurst v. Cockell 406
Blackley v. Sheldon 629
Blackstone Bank v. Hill 529, 536

Blackwell v. Justices of Law-

rence Co. 264
Blagg v. Sturt 417
Blaisdell v. Gladwin 118, 114

u. Roberts 614

Blake’s case 28
Blake v. Barnard 82
v. Knight 676

 

INDEX TO CASES CITED.

Section
Blake v. Midland R. Co. 267
v. Pilford 422
Blakeley v. Grant 163
Blakemore v. Glamorganshire
Canal Co. 434
Blaker v. Anscombe 640
Blanchard v. Baker 544
v. Blanchard 678
v. Bridges 475
v. Hilliard 190
v. Sprague 489
Bland v. Ansley 598
Blaney v. Bearce 239
Blaymire v. Hayley 578, 574
Blight v. Ashley 603
v. Rochester 557
Blin v. Campbell 85, 226
Bliss v. Thompson 120
Blodgett v. Jackson 159
Blood v. Goodrich 66
v. Harrington lla
v. Wood 317, 619
Bloodgood v. Bruen 440
Bloomer v. Jubel 566
Bloss v. Tobey 417
Bloxam »v. Elsee 490
v. Hubbard 649
v. Saunders 638, 640
Bloxsome v. Williams 638
Bluck v. Boyes 77
Blue v. Leathers 481
Bluett v. Middleton 160
Blunt v. Little 459
v. Starkie 114
Blyth v. Archbold 363
v. Topham 478
Board v. Head 635 a
Boardman v. Merrimack, &c.
Ins. Co. 408
v. Roe 121
v. Sill 648
Bodley v. Reynolds 276, 649
Bodwell v. Osgood 275, 417, 420
v. Swan 275, 418
Boehm v. Campbell 176
v. Garcias 181
Bogart v. McDonald lle
Bogert v. Haight 627
Bohanon v. Walcot 683
Boies v. McAllister 275
Boldry v. Parris 678

Bolivar Man. v. Nepon. Man. Co. 539
Bolles v. Beach 316
Bolling v. Mayor & Co. of Peters-

burg 539
INDEX TO CASES CITED.

Section-
Bolton v. Colder 249
v. Reichard 528
Bonafous v. Walker 265, 590
Bond v. Bond 462
v. Douglass 416
v. Farnham 190
v. Fitzpatrick 199, 200
v. Hilton 255
v. Pittard 477
v. Ward 585, 594
v. Warden 520
Bonner v. Welborn 473
Bonney v. Seely 113
Bonzey v. Redman 20
Boobier v. Boobier 642
Boody v. McKenney 367
Boon v. Morris 639
Boorman v. Nash 261
Boosey v. Davidson 515
Boot v. Cooper 449
Booth v. Grove 581
v. Smith 30
Bootle v. Blundell 694
Borradaile v. Lowe 196
Borrinsale v. Greville 367

Borthwick v. Carruthers 362, 366 :
Bosanquet v. Anderson 159, 165
v. Wray 478, 531
Boston v. Lecraw 662
Boston Bank v. Chamberlin 367
Manuf. Co. v. Fiske 253

,Water-Power Co. v. Gray 78

Hat Man. v. Messinger
& Lowell, &c. Corp. v.
Salem, &c. R. R. Co.
& Worcester R. R.
Corp. v. Dana
Bosworth v. Sturtevant
Bott v. Burnell
Boudinot v. Bradford
Boulter v. Clark
Bourdillon v. Dalton
Bourg v. Bringier
Bourne v. Boston
Boutelle v. Melendy
Bouton v. Reed
Bovey’s case
Bovill v. Wood
Bowditch v. Mawley
Bowditch Ins. Co. v. Winslow
Bowen v. Conner
v. Hall
v. Newell
v. Owen
v. Parry

533
468

108
624
315
683

85
239
207
299
123
261
590
133
300
406
657
424
251
605

 

95

xv

Section

Bowen v. Shapcott 27
v. Stoddard 251

v. The Hope Ins. Co. 388
Bowers v. Nixon lid
v. Suffolk Man. Co. 662

Bowles v. Bingham 151
Bowlin v. Nye 208, 642
Bowling v. Harrison 188
Bowman v. Wood 168
Bowne v. Hyde 141, 203
Bowsher »v. Calley 583
Boyce v. Dorr 496
Boyd v. Bird 573
v. Cleaveland 190

v. Cook 678

v. Dodson 66

v. McAlpen 496

v. Moyle lid
Boydell v. Drummond 443
Boyden v. Boyden ° 367
Boyle v. Brandon 577
Boynton v. Page 563

v. The Peterboro’, &c.

Railroad 358

v. Willard 621

Boys v. Ancell 258
Bracegirdle v. Hincks , 279
v. Orford 89, 253, 271

Brackett v. Norcross 318
v. Norton 141, 143
Bradbury v. Bridges 182
v. Grinsell 545

Bradfield v. Tupper 444
Bradford v. Drew 251
v. Levy 388

v. Manly 124

Bradin y. Dubarry 66
Bradley v. Gregory 31
v. Heath 275, 421, 424

v. Spofford 644

v. Waterhouse 220, 473

v. White 481
: v. Windham 593’
Bradlie v. Maryland Ins. Co. 392
Bradstreet v. Clark 554
Brady v. Weeks 473
Brailsford v. Hogeworth 186, 199,
200

Brainard v. Clapp 616
Brainerd v. Brackett 458
Braithwaite v. Gardiner 164, 165
Brammett v. Golden 641
Bramner v. Williams 221
Branch v. Burnley 418
Brand v. Boulcott 110
Xvi

Section

Brander v. Ferriday 398, 483

Brandram v. Wharton 444
Brandt v. Bowlby 638
Branscom v. Bridges 226
Brant v. Wilson 681
Bray v. Bates 642
Brayshaw v. Eaton 865, 366
Brazier v. Bryant 147, 538

v. Jones 71
Brearley v. Cox 560

Breasted v. Farmers’ &c. Ins. Co. 409
Breck v. Blanchard 302
Brecken v. Smith 126
Bredin v. Divin 36

Bredon v. Harman 280, 282

Bree v. Holbeck 448

Breed v. Cook 523

v. Hurd 602, 603

v. Judd 365

v. Pratt 690

Brembridge v. Osborne 527

Brent v. Erving 156

Brest v. Lever . 626

Bretherton v. Wood 209, 214, 228

Brewer v. Dew 253

v. Dyer 110

v. Knapp 534

v. Sparrow 642

Brewster v. McCall 686

Brice v. Randall 658
Bridge v. Grand Junction Rail-

way Co. 232 a, 267

v. Wain 262

v. Yates 686

Bridges v. Blanchard 475

v. Hawkesworth 618

v. Mitchell 447

v. Smith 565

Briggs v. Mason 625

v. Richmond 523

v. Smith 78

v. Vanderbilt 481

v. Wilkinson 239
Brigham v. Hutchins 440
v. Peters 63, 66

v. Smith 658

Bright v. Boyd 549
v. Wilson 651
Brigstocke v, Smith 442
Brimmer v. Long Wharf 555
Brinckerhoof v. Remsen 675
Brine v. Featherstone 396
Brinley v. National Ins. Co. 407

Brisco v. Brisco 52
Bristol v. Burt 642

 

INDEX TO CASES CITED.

Section

Bristow v. Eastman 368
v. Heywood 453

British Museum v. Finnis 660, 664
Brittain v. Lloyd 113
Britton v, Cole 629
v. Turner 1364

Broad v. Ham 454
Brock v. Copeland 473
Brocklebank v. Sugrue 377
Brockway v. Burnap 481, 560
Broderick v. Broderick 678
Brograve v. Winder 691
Bromage v. Lloyd _ 163
v. Vaughan 186, 189
Bromfield v. Jones 584, 589
v. Smith 281 a

Bromley v. Coxwell 642
v. Frazier 176

v. Wallace 52, 56
Brommage v. Prosser 419
Brook v. Bishop 229
v. Briggs 805

v. Carpenter 452

v. Pickwick 221, 261

v. Willett 568
Brookes v. Warwick 453
Brooks v. Barrett 689, 690
v. Bicknell 506

v. Blanchard 414

v. Bondsey 239

v. Hoyt 270, 599

v. Hubbard 259

v. Jenkins 501 a
Brotherston v. Barber 392
Broughton v. Whallon 621
Brown v. Allen 277
v. Anderson 342, 446

v. Bellows 78, 258

v. Bissett 597

v. Brashford 361

v. Cayuga, &e. R. R. 472

v. Chapman 449

v. Dean 565

v. De Selding 675

v. De Winton 160

v. Duchesne 496

v. Dysinger 305

v. Eastern Railroad Co. 215

v. Eastern Railroad 216

v. Edes 440

v. Feeter 526

v. Galloway 334

v. Gay 480, 475, 557

v. Gilmore 603, 605

v. Gordon 95
INDEX TO CASES CITED.

Section

Brown v. Hanford 585
v. Hodgson 114

v. Howard 97, 483, 448

v. Hudson 114

v. Jackson 249, 523

v. Joddrell 396

v. Kendall 94

v. Leavitt 79

v. Mallett 219

v. Maxweil 232 b

v. Minns 412

v. Moore 688

v. People’s Mut. Ins. Co. 408

v. Saul 601

v. Sayce 564

v. Tanner 79

v. Thissell 659 a

v. Ware 618, 619

v. Watts 520

v. Wood 339, 672
Browne v. Knill 404
v. Murray 429

v. Powell 569
Brownell v. Manchester 637
v. McEwen 579
Browning v. Kinnear 195
v. Skillman 614
Brownlow v. Tomlinson 625, 659
Bruce v. Mitchell 556
Brunton v. Hall 659
Brush v. Wilkins 684
Bryan v. Atwater’ 557
v. Jackson 65
Bryant v. Clifford 637, 640, 646
v. Com’th Ins. Co. 249

v, Eastman 163, 166

v. Ocean Ins. Co. 396

v. Ritterbush 207

v. Smith 518

v. Ware 642
Bryant's case 147
Bryce, In re 674
Brydges v. Duchess of Chandos 686
v. Plumtree 442

v. Welford 588, 593
Buchanan v. Parnshaw 262
v. Port 280, 291 a

Buck v. Cotton 195
Buckbee v. U. States, &. Co. 409
Buckingham v. Smith 440
Buckland v. Conway 141
v. Johnson 648

596
359
356

Buckle v. Bewes
Buckley v. Buckley
v. Nightingale
o*

 

xvii

Section

Buckley »v. Pirk 239
Buckman v. Thompson 437
Buckmaster v. Grundy 264
v. Smith 649

Buddington v. Shearer 277
Bulkeley v. Butler 158
Bulkley v. Buffington 297
v. Keteltas 454

v. Smith 454

Bull v. Parker 605
Bullard v. Nantucket Bank lla
Bullen v. McGillycuddy 30
Buller v. Fisher 219

Bullet v. Bank of Pennsylvania 156

Bullis v. Giddens 280
Bullock v. Dean 432
v. Dommitt 245 a

v. Lloyd 170
Bullythorpe v. Turner 562
Bunker v. Shed 481
Burbige v. Jakes | 209
Burchell v. Hornsby 655
Burden v. Halton 520
v. Webb 115
Burdick v. Green 431
Burges v. Ashton 411
Burgess v. Burgess £1, 45, 46
v. Cuthil 208

v. Gray 232 a

v. Merrill 24,133
Burghart v. Angergtein 363, 365, 366
v. Gardner 139

v. Hall 366
Burgoyne v. Showler 677, 681
Burgue v. De Tatset 484
Burley v. Bethune 453
v. Russell 364
Burling v. Patterson 295
Burlingame v. Burlingame 457
Burn v. Boulton 444
v. Miller 104
Burnett v. Smith 108
Burnham v. Allen 172

v. Stafford Savings Bk. 414

Burr v. Burr 253.
v. Smith 518
Burrage v. Smith 244
Burrell v. Lithgow 599
v. North 212
Burridge v. Fogg 556
Burrough v. Moss 171, 200
Burrows v. Heysham lla
Burson v. Edwards 418, 420
Burt v. Palmer / 65
v. People’s Mut. Ins. Co. 406
Xviil INDEX TO CASES CITED.

“a Section
Burt v. Place 111, 457
Burton v. Hughes 637
v. Payne ; 158
Burtonshaw v. Gilbert 682
Bush v. Canfield 261
v. Fox 493
v. Parker 98
v. Sheldon 672
v. Steinman 232 a, 232 b
Bushby v. Dixon 359, 360
Bushell v. Passmore 300
Bushwood ». Pond 544, 568
Bussy v. Donaldson 253
Butcher v. Carlile 279
v. London, &c. S. W. R. 221
Butler v. Basing 213
v. Gale 242
v. Heane 216
v. Hildreth 869
Butterfield v. Forrester 232 a, 267,
473
v. Harrell 116
v. Windle 284
Buttermere v. Hayes 282
Butterworth v. Ld. Despencer 404
Button v. Hayward ' 423
Butts v. Dean 520
Byam v. Bullard 496
Bye v. Bower lle
Byers v. McClanahan 296, 297
Byne v. Moore + 455
Byrne v. Crowninshield 439
Cc.
Cabanese v. Martin 454
Cabot v. Haskins 109
Cabot Bank v. Morton 122, 164
v. Russell 188
Caddy v. Barlow 453
Cadman v. Lubbock 604
Cadogan v. Cadogan 41
.Cairnes v. Bleecker 66, 642
Caldwell v. Wentworth 532 a, 533
Calhoun v. Vechio 603
Call v. Buttrick 465
v. Hagger 589
v. Lothro 606-
Callan v. Gaylord 416
Callot v. Haigh 195
Calvart v. Horsfall 834
Cambridge v. Hobart 440
Camden v. Anderson 878

 

Section

Camden and Amboy Railroad v.
Baldauf 216
v. Burke 215, 218, 221
Camelo v. Britten 389
Cameron v. The State 49
Camp v. Camp 297, 305
Campbell v. Arnold 616
v. Gordon 19
v. Hewlitt 251
o. Jones 235
v. Kincaird 141
v. Lewis 240
v. Morse 219
v. Pettengill 195
v. Phelps 68
v. Proctor 615
v. Race : 627
v. Stakes 368
v. Webster 189
v. Wilson 475, 545
Campbell's case 347
Campion v. Bentley 351
Canada v. Canada 104
v. Southwick 585
Canal Bank v. Bank of Albany 164
Canfield v. Ives 519
Canham ». Fisk 545
Canning v. Williamstown 267
Canot v. Hughes 645
Capen v. Barrows - 480, 481
Capers v. Wilson 658
Capp v. Topham 115
Capron v. Balmond 579
Card v. Case 230, 281
Carey v. Gerrish AT2
v. Stephenson 435
Cargill v. Taylor 589
Carley v. Vance 600

Carlton v. Ludlow Woollen

— Mill 440, 483
Carnegie v. Morrison 109
_ v. Waugh 109
Carpenter v. Goin 529
v. Gookin 1106
v. Prov. Wash. Ins. Co. 406
v. Shelden 454
v. Smith 502
v. Spencer 71
v. Wahl 577
Carpue v. London Railway Co. 222
Carr v. Clarke 573
v. Davies 645
v. Foster 250, 545
v. Hilton 448
v. Lancashire &c. R. R. Co. 215
INDEX TO CASES CITED.

Section

Carrington v. Carnock 278 a
: v. Roots 627
v. Taylor 254

Carrol v. Upton 186
Carroll v. Norwood 817

Carruthers v. Gray 388
Carter v. Andrews 417
v. Carter 566

v. Johnson 625

v. Smith 174

v. Taleot 141

v. Thomas 686
Cartland v. Morrison 638
Cartwright v. Cartwright 689
v. Cooke 31

Caruth v. Allen 626
Carver v. Miller 651
Carvick v. Vickery 159
Cary v. Bancroft 601
Case v. Barber 31
v. Boughton 524

v. Hartford Ins. Co. 404

v. Roberts 119
Cash v. Giles 124
Cass v. Cameron 590
Cassell-v. Cooke 116
Casseres v. Bell 19
Cassiday v. McKenzie 68 a, 518
Casson v. Dade 678
Castrique v. Bernabo 187
Castro v. Bennett 142
Caswell v. Coare 262
v. Wendell 264
Catherwood v. Caslon 49, 461
v. Chabaud 341

Cator v. Stokes 587
Catskill Bank v. Gray 481
Catterall v. Catterall 460
v. Kenyon 645

v. Sweetman 460

Catteris v. Cowper 618
Cattlin v. Hills 231 a
Caunce v. Spanton 644
Caunt v. Thompson , 186, 291

Cave v. Holford
Cavendish v.
Cavett’s Appeal
Cawdor v. Lewis
Cayford’s case
Cayuga Co. Bank v. Hunt

v. Warden
Central Bank v. Davis
Central Bridge Corp. v. Abbott
Chace v. Lincoln
Chadwick v. Trower

 

686

80
674
337
461
178
189
190
108
692
466

xix

Section

‘Chalmers v. Shackell 425
Chamberlain v. Cuyler 445

v. Harlewood 226, 571

v. Shaw 644, 649

Chamberlyn v. Delarive 523
Chambers v. Caulfield 51
v. Games 292

v. Robinson 418, 449,

453

Champion v. Terry 156
Champlin v. Tilley 338, 483
Chancellor v. Schott 532 a
Chandler v. Morton 330
v. Parks 133

v. Temple 297

v. Thompson 471

v. Worces. Ins.Co. 405, 408

 

Chapel v. Bull 241, 242, 297

v. Hickes 136, 143

Chapin v. Norton 256

Chapman v. Annett 195

v. Davis 338

v. Pickersgill 449

v. Sutton lld

Chappel v. Lee 359

Chapple v. Cooper 365

Chard v. Fox 186
Charles River Bridge v. War-

ren Bridge 4
Qharlest. & Col. Boat Co. v.

Bason 377
Charnley v. Wistanley 79
Charrington v. Laing 258

v. Milner 207

Charters v. Bayntum 365
Chase v. Cox 529
v. Dwinel 111, 121

v. Kagle Ins. Co. 403

uv. Keyes 599

v. Stevens 484

v. Weston 240
Chaters v. Bell 166
Chatterton v. Saul 560
Chauncey v. Yeaton 108
Cheap v. Harley 122
Cheasley v. Barnes 597, 629
Cheek v. Roper 181
Cheetham v. Hampson 472
Cheever v. Mirrick 141
v. Pearson 627
Cheminant v. Thornton 605
Chesapeake Ins. Co. v. Stark 393
Cheseldine v. Brewer 460
Chesmer v. Noyes 183

Chess v. Chess 297
xX
: Section
Chicago, &c., R. R. Co. v. War-

ren 219
Chichester v. Phillips 339
Chick v. Pilshury 187
Chicopee Bank v. Chapin 199

; v. Hager 188, 251
Chievly v. Bond 447
Child v. Homer 275

v. Hordon 75

v. Morley 114
Chilton v. Whiffin 170
Chinn v. Morris 93, 267
Chippendale v. Lancash. &c.

Railw. 215
Chirac v. Reinicker 333
Chisman v. Count 126
Chitty v. Naish 533

Cholmondeley (Ear! of) v. Lord

Clinton 140
Chouteaux v. Leech 64
Christian v. Coombe 385
Christie v. Cowell 423

v. Griggs 221, 222
Christopher v. Christopher 684
Christophers v. Sparke 528
Christy v. Flemington 440

v. Reynolds 136

v. St. Louis 121
Chubb v. Gsell 258, 419

v. Flannagan 416

v. Westley 418
Church v. Crocker 684
Churchill v. Perkins 115
v. Siggers 449

v. Speight 295

v. Watson 2538, 271
Churchman v. Smith 481

Churchward v. Studdy 620
Cilley v. Cilley 675, 689
City Bank v. Cutter 190, 607
Clancy v. Houdletie 618
Clapham v. Higham 79
Clapp v. Glidden 636
Clare v. Maynard 262
Clark v. Alexander 441
v. Baker 63, 251
v. Barnwell 220
v. Bigelow 183
v. Bogardus 524
v. Burdett 534
v. Burt 78
v. Clark 460
v. Cochran 669
v. Courser 141
v. Dales 261

 

INDEX TO CASES CITED.

Section
Clark v. ‘Draper 640
v. Eldridge 189
v. Foxcroft 1138, 585, 593, 597
v. Gray 209
v. Houghman 338, 448
v. Mann 291 a
v. Manuf. Ins. Co. 396
v. Marsiglia 261
v. Metropolitan Bank 64
v. New England, &c. Ins.
Co. 405, 406
v. Newsam 253
v. Pinney 261, 519
v. Ray 297
v. Scripps 681
v. Skinner 560
v. Smith 103, 104
v. Spence 218
v. Swift 240
v. Webb 126
v. Whitaker 642, 649
v. Wilder 26
o. Wright 688 a
Clarke v. Clarke 642, 648, 648
v. Davies 564
v. Dinsmore -80, 31
v, Dutcher 441
v. Gray : 401
v. Holmes 25
v. Leslie 365
v. May 597
v. MeAnulty 244
v. Morey 19
v. Needles 212
v. Scripp 681
v. Spence 638
Clarkson v. Carter 486
Clay v. Langslow 485
v. Willan 220
Ciayards v. Dethick 232a
Clayton v. Blackey 329
v. Corby 250, 544
v. Hunt 216
v. Kynaston 281
v. Stone 514
v. Wardell 410, 460, 461,
462
Clayton’s case 529, 532, 538
Cleave v. Jones 440, 444
Cleaveland v. Cleaveland 660
v. Dashwood 65
v. Union Ins. Co. 399
Clemence ». Steere 656
Clementson v. Williams 441
Clemson v. Davison 568
INDEX TO CASES CITED.

Section
-Cleverly v. Brett 847
Clifford v. Burton 65

Clift v. Stockton 117
Clifton v. Hooper 584
v. Murray 678
v. Strong 111, 121
Close v. Phipps 121
Closson v. Means 88
Clum v. Brewer 503
Clunnes v. Pezzey 255
Clutterbuck ». Chaffers 414
Coates v. Davis 166
v. Hughes 672, 684
v. Wilson 365
Coats v. Chaplin 212
Cobb v. Bryant 566
v. Dows 638
Cobden v. Bolton 217
Coble v. Willborn 243
Coburn v. Hollis 430, 557
v. Odell 520
Cock v. Richards 259
Cockcroft v. Smith 95
Cockell v. Bridgman 156
Cocker v. Cooper 631
v. Crompton 626
Cockerill v. Armstrong 95
Cockrane v. Libby 278 g
Cockshot v. Bennett 121
Codling v. Johnson 544
Codman v. Armstrong 532 a
v. Freeman 613
v. Jenkins 120
v. Winslow 555
Coffin v. Coffin 321
v. Cottle 80, 432
v. Field 618, 635 a
v. Newbp’t Ins. Co. 382, 403
v. Otis 681
Cogswell v. Dolliver 445
Cohen v. Hinkley 382, 384
v. Morgan 453
Coit v. Commercial Ins. Co. 251, 377
v. Houston 81
v. Starkweather 295
Coker v. Birge 465, 473
Colburn v. Richards 467
Colby v. Sampson 589
Colcord v. Swan lla
Cole v. Blake 605
v. Goodwin 215
v. Sprow]l 468
v. Stewart 614
v. Terry 646

v. Trull

536

 

Xxi

Section

Cole v. Turner 84
Coleman, Jn re 678
Coleman v. Forbes 444
,v. Parish 332

v. Riches 64, 64 a4

v. Roberston 688
Coleraine v. Bell 533
Coles v. Bell 608
v. Clark 638

v. Trecothick 60, 61

v. Wright 645
Collamer v. Foster 480
College v. Horne 442
Collings v. Hope 251
Collingwood v. Irwin 244

Collins v. Boston & M. R. R. 208, 221

v. Evans 230 a, 561

_ v. Perkins 625

v. Prentice 658, 660

v. Westbury 301
Collinson v. Margesson 440
Colsell v. Budd 290, 528
Colson v. Bonzey 239
v. Selby 131

Colt v. Barnard 179
v. McMechen 219
Coltman ». Marsh 443
Colton v. Goodridge 800

Columbia Ins. Co. v. Lawrence 387
Colwill v. Reeves 614, 622
Combe v. Pitt 286
Commerce (Bank of) v. Union

Bank 164
Commercial Bank. v. Cunning-
ham 536
v. Reckless 297
v. St. Croix ,
Man. Co. 195
v. Wilkins 585
Commissioners v. Allen 588
v. Hanion 292
v. Rose 141
v. Taylor 665
Commonwealth v. Bradford 459
v. Call 48
v. Chapman 286
v. Cole 662
v. Davis 457
v. Doane 251
‘vy. Drew 26
v. Dudley 241
v. Emery 299
v. Eyre 83
v. Harmon 418
v. Hawkins 874
Xxil
Section
Commonwealth v. Horton 47
v. Hunt 461
v. Isaacs 48
v. Littlejohn 461
v. McDonald 660
v. Mecklin 116
v. Merriam 47
v. Moseler 371 a, 372
v. Newbury 664
v. Norton 26
v. Pejepscot 78
v. Putnam 48
v. Shepard 150
: vo. Snelling 458
v. Stricker 150
Compagnon v. Martin 414
Compton v. Chandless 144, 433
v. Jones 112
v. Richards 471
Comstock v. Smith 520
Conard v. Pacific Ins. Co. 272
Coneanen v. Lethbridge 586
Cone v. Baldwin 136
Conklin v. Pearson A444
Conn v. Coburn 365

Connecticut, State of, v. Jackson 529
Conner v. Henderson 124
Conover v. Mut. Ins. Co. Albany 405
Conroe v. Birdsall 367
Consequa v. Willing 249
Converse v. Citizens, &c. Ins. Co. 405

v. Converse 688

Cook v. Babcock 557
v. Bachellor 227

v. Deaton 366

v. Ellis 253

v. Green 616

v. Hall 467

v. Harris 239

v. Hartle 649

v. Round 288

v. Stokes 414

v. The State 49

v. Ward 417

v. Wildes 421

v. Wortham 577
Cook’s Will 681
Cooke v. Hughes 828
v. Lloyd 462

v. Munstone 108, 104

v. Rhodes 140

v. Stafford lid
Coolidge v. Brigham 262
* ~~ y, Choate 272

v. Learned 539

 

INDEX TO CASES CITED.

Section

Coon v. Moffett 575
v. Syracuse, &c. R. R. 232 5
Cooper v. Barber 425, 473, 475
v. Blandy 305, 565

v. Bockett 676, 681

v. Galbraith 316

v. Johnson 79

v. Lloyd 46

v. Meyer 166

v. South 484

uv. Stower 627

Coore v. Callaway 608
Cope v. Cope 150
v. Humphreys 528

v. Romeyne 638

Copeland v. Merchants’ Ins. Co. 66

v. New Eng. Ins. Co. 400

Copes v. Pearce 462
Coppe v. McDougall 195
Copper v. Power 523
Coppin v. Braithwaite 222 a, 253,
267, 272

Cordon v. Ld. Massarene 115
Corfield v. Coryell 614, 616
Cornell v. Le Roy 406
Corney v. Da Costa 195

Corning v. Corning 93
Cornish v. Keene 490, 494, 502
Cornwall v. Gould 118, 519
v. Isham 691
Corporation of Clergymen’s
Sons v. Swainson 347
Cortelyou v. Van Brundt 616
Cortland v. Underhill 78

Cory v. Scott 197
Coryell v. Colbaugh 269
Coryton v. Littleby 227
Cossy v. Diggons 564
Coster v. Murray 447
Costigan v. M. & H. Railroad
Co. 2614
Cothers v. Keever 261, 262
Cottam v. Partridge 445, 447
Cotterell v. Griffiths 474
v. Jones 449
Cottle v. Aldrich 348, 844
Cotton v. Pocassett Manuf. Co. 544

Countess of Salop v. Crompton 615

Courteen v. Touse 66
Couscher v. Toulan 39
Cousens v. Paddon 1438
Coutts v. Gorham 471
Covell v. Hill 640, 649

v. Laming 622

v. Weston 358, 361
Covert v. Irwin
Cowan »v. Silliman
Cowell v. Edwards
Cowling v. Higginson
Cowlishaw v. C eslyn
Cowper v. Andrews

INDEX TO CASES CITED. Xxili

Section
303
243
114
659
632
545

Cowperthwaite v. Sheffield 183, 533

Cox v. Callendar
v. Dugdale
v. Glue
v. Strode
v. Sullivan
Coxe v. Harden
v. Heisley
v. State Bank
Coxedge v. Coxedge
Coxhead v. Richards
Coxon v. Lyon
Craig v. Craig
v. Missouri
Crain v. Colwell
v. Petrie
Cram v. Thissell
Cramp v. Adney
Cranch v. Kirkham
v. White
Crandall v. Bradley
v. Dawson
Crane v. Crane
Cranley v. Hillary
Cranston v. Kennedy })
Crantz v. Gill
Craufurd v. The State
Cravath v. Plympton
Crawford v. Whital
Creamer v. Perry
Creevy v. Carr
Cremer v. Higginson
Cresswell v. Byron
Crewe v. Crewe
Crisdee v. Bolton
Critchlow v. Parry
Crocker v. Getchell

332
271

616

264
144, 146
640

215

601

51

421

12

113

135

196

256

642

78

445

648
112, 118
425

556

30

78

365

299

108

338

190

424

529

- 142
42, 50
258, 259
166

189

v. People’s, &c. Ins. Co. 251

Crockett ». Crockett
Crofoot v. Allen
Croft v. Croft

v. Pawlett
Crofton v. Ilsley
Crofts v. Waterhouse
Crogate’s case
Cromwell v. Lovett
Crook v. McTavish

v. Wright
Crooker v. Hutchinson

656
74
46
671
668
221
95, 632
520
434
139

145, 146

 

, Section
Cropper v. Nelson 207
Crosby v. Wadsworth 615

v. Wyatt 489
Cross v. Lewis 545
Crosse v. Smith 194, 349
Crossen v. Hutchins 195
Crossland v. Murdock 672
Crossley v. Beverley 490
Crouch v. Lond. &c. Railw. 221
Croughton v. Blake 679
Crow v. Rogers 109
Crowley v. Barry 208
v. Cohen 379
Crowninshield v. Crowninshield 689
v. Robinson 136
Crowther v. Ramsbottom 629
Crozer v. Pilling 453, 606
Crutchly v. Mann 163
Cubitt v. Porter 617
Cull v. Sarmin 13
Cumber v. Wane 28, 31
Cumberland v. North Yarmouth 74
Cumen v. Smith 412
Cumming v. Hackley 118, 520, 521’
Cummings v. Noyes 108
v. Putnam 601
‘Cunningham v. Day | 116
v. Lawrents 120
Currie v. Donald 295
Curry v. Com’th Ins. Co. 396, 408
Curtis v. Angier 662
v. Carson 95
v. Derring 244
v. Drinkwater 221
v. Francis 556
v. Hall 295, 300
v. Hannay 262
v. Hoyt 272
v. Hunt 347

v. Rochester & §. Rail-
road 2686
v. Vernon 344, 345, 350
v. Ward 649
Curtiss v. Greenbanks 601

v. Rochester, &c. R. R. Co.

222, 268 B
Cushing v. Adams 622
v. Aylwyn 686
v. Gore 112
Cushman v. Blanchard 243
v. Waddell 93
Cuthbert v. Cumming 251
v. Peacock 524
Cutler v. Close 136, 143

v. How 259
XXiV

Cutler v. Johnson
v. Lincoln
Cutter v. Powell
Cutts v. Spring
Cuyler v. Nellis

D.

D’ Aguilar v. D’ Aguilar
Daggett v. Adams
Daily v. Beck
Dain v. Wicoff
Daines v. Hartley
Dalby v. India, &c. Ins.
Dale v. Birch
v. Wood
Dalglish v. Davidson
Dallyway v. Turill
Dalton v. Favour
v. Gib
Dalzell v. Mair
Dame v. Kenney
Damon v. Bryant
v. Roach
Dan v. Brown
Dana v. Combs
v. Fiedler
v. Valentine
Dance v. Robson
Dane v. Kirkwall
Danforth v. Culver
v. Pratt
v. Schoharie
Daniel v. North
Daniels v. Daniels
v. Pond
Danielson v. Andrews
Darby v. Mayer .
v. Smith
Dauce v. Luce
Davenport v. Lamson

v. N. E. Mut. Ins. Co. 406
v. Rackstrow

v. Russell
David v. Ellice
v. Moore
v. Preece
Davidson v. Graham
v. Willasey
Davies v. Jenkins
v. Mann
v. Nichols
v. Vernon

v. Williams

INDEX TO CASES CITED.

 

Section Section
259 | Davis v. Barrington 104

556 v. Briggs 478.

103 v. Calvert: 690

618 v. Davis 688 a

187 v. Dodd 156

v. Griffith 275

v. Hardy 454

v. James 212

v. Nash 616

44, 538, 54 v. Oswell 276
635 a v. Saunders . 94
340 _ v. Sigourney 688 a

574 v. Smith 445

414 v. West 431
Co. 409 v. White 614
587 v. Willan 216

95 | Davison v. Hanslop 127

393 v. Oswell 648

411 v. Penton 257, 258

226 v. Smith 367, 440

366 v. Stacey 564

381 v. Stephens 539, 659, 664

424 | Davy v. Faw - 78

597 v. Smith 678

268 a | Dawes wv. Peck 212, 640, 648
681, 694 v. Shed 446
367 | Dawson v. Chamney 230

261 v. Lawley 139
478, 545 v. Moore °* 472
424 v. Tibbs 135
370, 371 | Dax v. Ward 136
441, 443 | Day v. Bream 415
265 v. Holloway 255

127 v. Lamb 431
475, 545 v. Nix 136
* 644 v. Ridley 213
615 | Dean v. Dean 675, 688 a
lle v. James 604
672 v. Peale 88, 278, 574

635 v. Pitts 443

95 v. Williams 530

471 | Dean, &c. of Ely v. Warren 250
Deane v. Clayton 473

478 | Dearborn v. Dearborn 145, 146

89 | Deblois ». Ocean Ins. Co. 400

127 | De Berkom v. Smith 483

213 | De Bernales v. Fuller 119

11 e | Decker v. Freeman 296

215 v. Mathews 638, 649
382 | Decreet v. Burt 478

144 | De Crespigny v. Wellesley 424

220 | Deering v. Sawtel 330

644 | Defries v. Davis 418

644, 645 | De Gaminde v. Pigou 381
574 | De Hahn »v. Hartley 406
INDEX TO QASES CITED.

Section

De la Chaumette v. Bank of ;
England 172
De la Courtier v. Bellamy 12
Delacroix v. Thevenot 414
Delancy v. McKean 331
Delano v. Blake 867
De la Torre v. Barclay 442
Delavergne v. Norris 242

Delaware and Hudson Canal
Co. v. Westchester Co. Bank 109
Delegal v. Higley 418, 454, 455

Delvalle v. Plomer 594
De Mantort v. Saunders 25
De Marentille v. Oliver 82
Demarest v. Willard 240
v. Fairlee 297
Den v. Matlock 676
v. McCan 539
v. Vancleve 690
Denew v. Daverell 136
Denham v. Crowell 290
Denis v. Warder 686
Denison v. Hyde 253
Denn. v. Chubb 336
v. Flack 112
v. Mason 295
v. Purvis 317
v. Wright 66
Dennett v. Crocker 557
Dennie v. Harris 640
v. Hart 520
Denning v. Roome 660
Dennis v. Cumming 258
v. Pawling 93
Dennistoun v. Stewart 189
Denny v. Cabot 481
v. Lincoln 115
Denton v. Franklin 689
Denys v. Shuckburg 433
Derisley v. Custance 239, 354
Derosne v. Farie 489
De Rothschild v. Royal Mail
&c. Co. 219
Derwort v. Loomer 141, 221
Desha v. Holland 251
Deshon v. Eaton 440
v. Merchants’ Ins.Co. 400
‘De Sobry v. De Laistre 669

Despatch Line, &c. v. Bellamy
Man. Co. 668

Dessebats v. Berquier 642
Deuch v. Walker 642
De Vera Maraver, In re 668
Devereaux v. Barclay 642
Devoe v. Croydon 648

VOL. II. e

 

 

XXV

Section

Dew v. Clark 371a

v. Parsons 121

Dewey v. Bayntun 594

v. Brown 317

v. Dewey 295, 676, 678

v. Humphrey 607

v. Osborn 333, 336

De Wolf v. Dearborn 640

v. Murray 186

De Wolfe v. 147

Dey v. Dox 261
De Zichy Ferraris v. Marg. of

Hertford 668

Dibble v. Brown 218, 221

Dick v. Page 68a

Dickenson v. Dickenson 681

Dickerman v. Graves 46

Dickerson v. Watson 85

Dickey v. Sleeper 80

Dickinson v. Barber 275, 424, 690,

691

v, Boyle 254, 268

v. Howard 49

v. Prentice 203

v. Shee 602

v. Williams 445

v. Winchester 211

Dickson v. Lodge 380

Digby v. Atkinson 245 a

Dimes v. Petley 231

Dismick v. Lockwood 264

Dietrich v. Berk 616

Dillingham v. Smith 561

Disborn v. Denaby 109

D'Israeli v. Jowett 384

Ditcham v. Bond 225, 627

v. Chivis 209

Dixon v. Bell 268

v. Clarke 601

v. Deveridge 126

v. Dunham 251

v. Hancock 561

Dobree v. Eastwood 193

Dobson v. Land . 405

v. Sotheby 408

Dockray v. Dunn 174

Dodd v. Holmes 467,473

v. Kyffin 625

v. Norris 58, 577, 579

Doddington v. Hudson 469

Dodge v. Morse 27

Dodwell v. Burford 84

v. Gibbs 332

Doe v. Andrews 278 d, f

v. Archer 323
. Banks
. Barford
. Batten
. Baytup

Bevan

v. Bird

SPESSSSSSPSSSSSSseeseeseesessseesessarseseesee2¢s2ses2

Burton
Calvert

. Carver
. Chaplin

Clarke
Creed.
Crick
Cuff
Davis
Deakin.
Doe
Dunbar

. Durnford

Edwards
Evans

Farr v. Hicks
Fenn
Fleming
Forster
Frowd

. Grazebrook

Griffin
Grubb
Hare
Harris
Hersey
Hilder
Horner
Huddart
Tnglis
Jesson
Johnson
Jones
Knight
Knightley
Lambly
Lancashire
Lewis
Lonsdale
Lucas
Manifold
Meaux

. Mills

. Mitchell -
. Mizen

. Murless

. Nepean

. Palmer

. Pasquali

INDEX TO CASES CITED.

Section
327

684

321, 325
805

245

318

305

321, 693
245

317, 323
306

325

821, 324
318

336, 456, 677
278h

45

324

322

205

674

58

317

462

321

325

463

354
821, 325
336
321, 625, 681
691

665

78

336

325
278 f, 355
825

439

297

323

321

684

305

317

824

678

825

805

805

805

816

855

821, 324
821

s

seeseseeseseeeeeresesesee2

Doe v. Pattison

Payne

. Pegse
Porter
Potts
Prosser
Read

. Rickarby
Roe
Salter
Smith
Somerton
Spiller
Steel
Trye

. Watkins
Watson

. Whippel
Whitroe

. Whittic
Williams
. Wilkinson
Wolley

. Wombwell
Wright

v. Wrightman

Dogan »v. Ashbey
Doggett v. Everson

Doherty v. Clark

Dole v. Hayden
v. Lyon

Dollfus v. Frosch
Don v. Lippman
Donahoe v. Shed
Donaldson v. Winter
Donnell v. Gatchell
Donnelly v. Donnelly
Donohue v. Woodbury
Doolittle v. Blakesley
Doremus v. Howard

Dorr v. Munsell

Section

318,

245,

310, 355,

674
245
306
641
317
557
317
328
318
625
316
322
323
314
59%
324
305
317
305

325

325
306
679
321
626
323
520

230 a

v. New Jersey, &c. Co.

v. Pacific Ins. Co.
Dorrell v. Johnson

Doty v. Wilson
Doub v. Barnes

Dougherty v. Western Bank of

Georgia

 

Douglas v. Elkins

v. Forrest

v. McAlister
v. Moody

v. Patrick

v. Scougall

Doune v. Estevin de Darby

440,

344,

150
113
424
195
669
597
672
432
462

28
438
107
300
215
401
622
108
141

180
448
437
261
1138
604
401
277
INDEX TO CASES CITED. XXVii

Section
Dover v. Rawlings 562
Dow v. Smith 393
_ v. Sudbury | 117
Dowd v. Wadsworth 645
Dowdale’s case 361
Dowden v. Fowle 593
Downer v. Button 63
v. Madison 256
Downey v. Hicks 520
Downing v. Lindsay 432
Downs v. Skrymsher 47, 95
Dows v. Morewood 533
Drake v. Brander 26
v. Drake 135
v. Hudson 252
v. Rogers 662
uv. Shorter 643

v. Sykes 64, 582 |
Draper v. Arnold 580
v. Fulkes 647
Drew v. Drew 437
Drewell v. Towler 544
Drumright v. Philpot 61
Drury v. Strong 264
v. Worcester 662
Dry Dock Co. v. McIntosh 129 a
Duberly v. Gunning 51
Dublin v. Chadbourn 339, 669, 672
Dubois v. Doubleday 112
v. Keates 453
Dubost v. Beresford 414
Ducett ». Cunningham 141

Duchess of Cleveland 'v. Dash-

wood 65
Ducommun,v. Hysinger 291 4
Dudley v. Follett - 243
v. Littlefield 171
v. Smith - 221
Duff v. Budd 212
Duffield v. Scott 116
Duffy v. Gorman 115
v. Morris 688

Dufresne v. Hutchinson 30, 648
Dugan v. The United

States 166, 169
Duggan v. O’Connor 565
Duhammel v. Pickering 107
Duke v. Spring 359

Duke of Norfolk v. Germaine 47, 55
Somerset v. France 250

Dunbar v. Jumper 240
Dunbarton v. Franklin 462
Duncan v. Cannan 460
v. Findlater 232 a
v. Keiff 114

 

Section

Duncan v. Scott 165, 172
'y. Sparrow 163

v. Spear 637

v. Staleup 272
Duncombe v. Daniell 424
Dunford v. Messiter 114
Dunham v. Dunham 40, 41
v. Jackson 603

v. Wykoff 561

Dunk v. Hunter 565
Dunlap v. Buckingham 279
v. Dunlap 677

Dunlop v. Higgins 261
Dunman ». Bigg AQL
Dunn v. Body 104
v. Dunn 54

v. Large 336

v. St. Andrew’s Church 62
Durant v. Durant 41, 44, 53, 54

Durell v. Mosher 642
Durling v. Loveland 675
Duryee,v. Dennison 196
Dutton v. Poole 109
v. Solomonson 640
v. State 26
v. Woodman 479, 684
Dwight v. Brewster 215, 642
Dwinel v. Barnard 662
Dwyer v. Bowley 566
Dye v. Leatherdale 622
Dyke v. Aldridge 584
v, Sweeting 290

E.
Eager v. Grimwood 577 a
v. The Atlas Ins. Co. 249, 377
Eagle Bank v. Hathaway 188
v. Chapin 187, 191
v. Smith 156
Eames v. Prentice 618
v. Savage 124
Ear] v. Hall 232 @
v. Raymond 26
Earl of Derby v. Taylor 239
Leicester v. Walter 275, 424
Earle v. Harris 383
v. Peale 365
vu. Reed 365
v. Rowcroft 390
v. Sawyer 489, 494, 495
Easley v. Moss 414
Eason v. Henderson 36
East v. Chapman 424,425

v. Smith 186
xxviii
4

Section

‘East London Waterworks Co. v.
Bailey 62
East India Co. v. Paul 435
v. Prince 441, 442
Easterby v. Pullen 442
Eastwick v. Hugg 117
Eastwood v. Kenyon 107, 282
Eaton v. Bright 462
v. Jaques 239
v. Lynde 640
v. Ooier 11 6, 599
v. Whitaker 11)
Ebersoll r. Krug - 116
Ebert v. Ebert 69, 411
Eccleston v. Petty al. Speke 678
Eckert v. Wilson 440
Eckstein v. Reynolds 605
Eddy v. Smith 117
Edelen v. Hardey 678
Edge v. Pemberton 655
Edgerley v. Emerson 116
Edgerton v. Brackett 112
Edie v. The East India Co. 249,
é 252
Edmonds v. Buel 629
v. Lowe |. 205
Edmondson v. Machell 273, 573
Edmunds v. Cox 79
v. Downes 440
Edson v. Weston 135
Edwards v. Astley 681
v. Beach 253
v. Crock 57
v. Footner 396
v. Hooper 642, 644
v. Sharratt 220
v. Yeates 608
Efner v. Shaw 76
Ege v. Kyle 478
Egg v. Barnett 527
Egleston v. Macauly 262
Eichar v. Kistlar 579
Eichon v. Le Maitre 27
Ela v. Rand 25, 181
Elden v. Keddel 815

Electric ‘telegraph Co. v. Brett 493

Eliot v. Allen 277
v. Eliot 44
Elkins v. Boston & M. R.R. Co. 211
Elliott v. Ashton 502
v. Dudley 478

v. Edwards 124

v. Morgan 131

v. Nicklin 579

v. Swartwout 121, 123

 

INDEX TO CASES CITED.

Section

Ellis v. Abrahams 454
v. Ellis 365

v. Paige 359, 615

v. Watson 484

v. Welch 243, 244

v. Wild 528
Ellsworth v. Brewer 112
v. Tart 481

Ellwood v. Monk 109

Elmore v. Naugatuck R. R.Co. 210

Elsam v. Faweett - 56

Elsey v. Metcalf 297

Elting v. Scott 396

Elwes v. Elwes 43

Elwood v. Bullock 250

Embrey v. Owen 467

Emerson:v. Boville 684

: v. Cutts 166

v. Murray 300

v. Propr’s of Minot 244

v. Thompson 342

v. White 278 f

v. Wiley 665

Emery v. Estes 172

v. Hildreth 339

Emmerson v. Blonder 65

v. Heelis 61

England v. Slade 805, 565

Ennos v. Pratt 72
Epis. Charit. Society v. Ep.

Ch. in Dedham 66
Erick v. Johnson 67
Erskine v. Townsend 330

v. Olmstead 615

Erwin v. Blake 141
Esselstyn v. Weeks 440
Esson v. Tarbell 561
Estes v. Troy 660
Etheridge v. Binney 483
Evans v. Ascough 361
: v. Birch ~ 88, 528
v. Brander 586, 599

v. Curtis 483

v. Eaton 505, 508

v. Evans 42, 616

v. Gray 136

v. Harris 107

v. Hettich 508

v. Lluey 801

v. Judkins 605

v. Manero 599

v. Morgan 462

v. Myers 251

v. Powis 81

v. Stephens 284
INDEX TO CASES CITED.

.

Section

Evans v. Vaughan 2438

v. Verity 126
Eveleigh v. Sylvester 387
Evelyn v. Chichester 367
Everett v. Coffin 642

v. Collins 520
v. Tindall 285
Everth v. Tunns 389
Ewart v. Kerr 649

v. Street 219
Ewer v. Coxe 511

v. Jones 435
Ewing v. Blount 649

v. Blowel 649

v. French 118

v. Peters 347
Exall v. Partridge 114
Eyles v. Faikney 115, 590
Eyre v. Palsgrave 98, 389
Ezell v. Franklin 64a

F. i

Fairbank v. Phelps 640
Fairbanks v. Blackington 118
v. Stanley 112

v. Wilkinson 240

Fairchild v. Adams 69, 78
Fairclaim v. Shackleton 318
Fairlee v. Denton 112
Fairlie v. Birch 589
Fairman v. Ives 421, 423
Faith v. MclIutire 208
Fane v. Fane 524
Fannin v. Anderson 438
Fant v. Cathcart 367
Farish v. Reigle 221
Farlie v. Danks 449
Farmer v. Arundel 123
v. Darling 453

v. Rand 190
Barmers’ Bank v. Reynolds 156°

Farmers and Mechanics’ Bank »v.
Champlain Transp. Co, 210, 215
_Farnham v. Brooks 448

Farnsworth v. Allen 178
v. Chase 251

v. Garrard 136

v. Storrs A21

Farnum v. Fowle 179
v. Platt 658

Farr v. Newman 594
v. Smith 647

v. Stevens 528

c*

 

xxix

Section

Farrant v. Olmins 259
v. Thompson 640

Farrar v. Ayers 690
v. Barton 635 a

v. Beswick 646

v. Merrill 541
Farrington v. Lee ; 445
Farwell v. B. & W. Road Co. 2324
Faugier v. Hallet 393
Faulder v. Silk 246, 371
Faulkner v. Brown 637
Favenc v. Bennett 536
Faw v. Roberdeayx 437
Faweett v. Hall 327
v. Jones 675

Fay v. Bradley 530
v. Goulding 14

v. Noble — 481

v. Prentice 474

v. Taylor 347
Fearnley v. Morley 121
.Featherstonhaugh v. Johnston 642
Feize v. Thompson 255
Felch v. Taylor 109, 110
Feltham v. Cartwright 627
v. Terry 117, 121

Felton v. Dickinson 104, 110
Femings v. Jarratt 343
Fenn v. -Grafton 471
Fenner v. Duplock 565
v. Lewis 65
Fennings v. Ld. Grenville 646
Fenton v. Reed 460
Fenwick v. Floyd 816
Ferguson v, Cappeau 209
Fernald v. Chase 642
Ferrell v. Alder 244
Ferrer v. Oven 70
Ferrers v. Costello 107
v. Ferrers 53

Ferris v. Brown 625
v. Fuller 825
Fessenmeyer v. Adcock 37, 112, 126
Fetherley v. Waggoner 679
Fetter v. Beale 89
Field v. Holland 533
In re 674

v. Nickerson 179

v. Proprietors 139
Fielder v. Starkin 262
Filby v. Miller 141
Filliter v. Phippard 253
Finch v. Blount 649
v. Brook 602, 603

v. Gridley 412
XXX

Section

Finch v. Miller 605

Fincham v. Edwards 678
Findlay v. Sinith 651, 656
Finnerty v. Tipper 418

Fireman’s Ins. Co. v. Cochran 648

Fish v. Chapman 215
v. Dodge 372
Fisher v. Bradford 168
v. Bristow 452

v. Duncan 342

v. Fellows 114

v. Jewett 24, 367

v. Leland 200

ve. McGirr 597,629

v. Pimbley 78, 79

v. Samuda 136

ve. Sargent 251

v. Whoollery 560

v. Willard 66

Fiske v. New Eng. Ins. Co. 398
v. Small 618
Fitch v. Chandler 109.
v. Hilleary 445

v. Newberry 208

v. Sutton 28, 519

Fitts v. Hall “368
Flanders v. Colby 638
v. Davis 360
Fleetwood v. Curly 417
Fleming v. Alter 109
Flemington v. Smithers 267
Fletcher v. Braddyll 416
U. Dyche 259
Flewster v. Royle 621
Flint v. Clinton Co. 62
v. Flemyng 380, 382
Florey v. Florey 689
Flower v. Adam 473
v. Pedley 414

v. Young 378, 384

Floyd v. Day 113, 118
Flureau v. Thornhill 261

Fogg v. Middlesex, &c. Ins. Co. 405

Foley v. Ld. Peterborough 51

v. Mason 251
Folger v. Hinckley 561
Folly v. Vantuyl 297

Folsom v. Belknap, &c. Ins. Co. 405

v. Manchester 644
v. Merchants’, &c. Ins.
Co. 882
v. Mussey 136
Foot v. Knowles 347
Foote v. Silsby 507

Forbes v. Agawam Ins. Co. 406

 

INDEX TO CASES CITED.

Section

Forbes v. Appleton 123
v. Ld. Middleton A432

v. Manuf. Ins. Co. 892

Forbush v. Western Mass. Ins. Co.

406

Ford v. Ford 681
v. Fothergill 366

v. Jones 73

v. Phillips 367

v. Williams 141
Forde v. Skinner 84
Fordham v. Wallis 438
Fores v. Wilson 88, 573
Foreman v. Miller « 261
Forney v. Hallacher 49, 461
Forrester v. Pigou 396
Forse & Hembling’s case 684
Forster v. Forster 52
Forsyth v. Ganson 352
v. Hastings 367
Fortune v. Buck 672
Forty v. Imber 564
Forward v. Pittard 219
Foshay «. Ferguson 454
Foster v. Alanson 127
v. Bates 339

v. Blakelock 847

v. Equitable Ins. Co. 405

v. Gorton 640

v. Mansfield 297

v. Pettibone 614

v. Pointer lid

v. Shaw 441

v. Stewart 108

v. The Essex Bank 68

v. Thurston 115

v. United States Ins. Co. 382

v. Wilmer 382
Fouldes v. Willoughby 642
Founes v. Ettricke 462
Fowler v. Bott 245 a
v. Bush 520

v. Down 640

v. Gilman 276, 649

v. Hunt 439

v. Sharp 846
Fowles v. Great Western R. Co. 209
Fox v. Evans 694
v. Harding 256

v. Marston * 684

v. Northern Liberties 621

v. Whitney 204

v. Widgery 557
Foxcroft’s case 150
France v. Lucy 191
INDEX TO CASES CITED.

; Section
Francis v. Grover 681

v. Wilson 263
Franklin v. Miller 136
v. Vanderpool 520

Franklin Fire Ins. Co. v. Findlay
405
Frankum v. E. of Falmouth lle
Fraunces’s case 248
Frazer v. Berkley 93, 267
v. Hopkins 378
Frazier v. Dick 202
v. Hyland 530
Freary v. Cook 250
Frederick v. Lookup 248
Free v. Hawkins 164
Freeman v. Arkell 455
v. Birch 212
v. Bluett 597
v. Boynton 179
v. Freeman 7 681
v. Haskins 199
v. Kennell 160

Freer v. Peacock 371 a, 372,
689
Freestone v. Butcher 64a

French v. Bank of Columbia 195

v. French 295

v. Kirk 452

v. Marstin 659

v. New 78

v. Richardson 71, 74, 78

Frets v. Frets 79
Fricker v. Tomlinson 282
Friend v. Eastabrook 246
v. Woods 219
Friesmuth v. Agawam, &c. Co. 406,
408

Frink v. Lawrence 468
Frisbie v. Larned 523
Frohock v. Pattee 440
Fromont v. Coupland: 214
Frost v. Bengough 441
v. Dougal 584
Frothingham v. Haley 67
Frye v. Barker 441
Fuller v. Bradley 211
v. Hooper 190 a, 195

v. Little 603

v. MeDonald 190, 196

v. Naugatuck R. R. Co. 221

v. Rounceville 625

v. Tabor 642

v. Wilson 68
Fullerton v. Warwick 93
Fulton v. Griswold 136

 

Fulton v. Williams
Fulton Ins. Co. v. Milner
Funk v. Dillon

v. Voneida
Furman v. Applegate
Furneaux v. Hutchins
Furness v. Cope
Furniss v. Ellis
Fydell v. Clark
Fynch v. Lambe

G.

Gabay v. Lloyd
Gabriel v. Dresser

Xxxi

Section
478
251
649
242

oT? @
250
195
lla
523
432

377
30

Gaby v. Wilts. & Berks. Canal

Co.
Gage v. Gage
Gaillard v. Smart

Gaines v. Relf
Gainsford v. Carroll
Gale v. Capern

Galena, &c. R. R. Co. v. Fay

Galloway v. Bleaden
Galvin v. Bacon
Gammon v. Everett
Gansevoort v. Williams
Gants v. Vinard
Gardiner v. Campbell

v. Cleaveland

v. Collins

v. Croasdale

v. Gardiner

v. Heartt

v. dadis

v. Madeira

v. Peerage case

wv. Slade

v. Tudor

v. Webber
Gardner v. Field

v. Gardner

v. Randolph
Gargrave v. Smith *
Garnett v. Woodcock
Garrett v. Handley
Garrison v. Sandford
Garritt v. Sharp

Garside v. Trent. & Mersey

Nav. Co.
Garth v. Howard
Garvey v. Hibbert
Gass v. Stinson
Gates v. Bayley

434
61
141

462, 468

261
24
222
494
561
195
478
426
615
113
297
260
293
230 b
56
AT
152
421
440
431

277, 624

53
455
634
178
109
242
476

210
64
298 ©
533
634
XXxli

Section

Gates v. Bowker 11, 413
v. Butler 430, 475, 556

v. Gates 561
Gathercole v. Miall 415
Gathings v. Williams 464
Gayetty v. Bethune 657
Gaylord v. Van Loan 14
Gaze v. Gaze 676
Gazynski v. Colburn 411

General Mut. Ins. Co. v. Sher-

wood 387
Gennings v. Norton . 435
George v. Surrey 677

v. Van Horn 575
Gerard v. Baker 65

Germantown Railr. Co. v. Wilt 621

Gerrard v. O’Reilly 259
Gerrish v. Cummings 277, 649
v. Edson 599

v. Nason 675
Gibbens v. Cross 684
Gibbon v. Coggon 184, 584
vw Featherstonhaugh 527
Gibbons v. McCasland 441
v. Pepper 85, 94

v. Wilcox 484

Gibbs v. Cannon 186
v. Chase 621

v. Merrill 24, 133
Gibson v. Chaters 453
v. Culver 210

v. Farley 358

v. Fleming 95

v. Grosvenor 440

v. Minnet ' 119

v. Wells 655

v. Williams 417

Gidley v. Williams 338
Gidney v. Earl m 616
v. Stone 270

v. Williams 142
Gilbert v. Birkinsham 255
Gilchrist v. Cunningham 118
Giles v. Dyson 347
v. Edwards 104

v. Grover 637

v. Harris 607

Gill v. Cole 332, 336
v. Kuhn 481

v. Logher 142
Gilleland v. Martin 278 f
Gillett v. Maynard 124
v. Rippon 118, 114

Gillies v. Smither 348, 349
Gillon v. Boddington 434

 

INDEX TO CASES CITED.

Section

Gillon v. Wilson
Gilman v. Haven 240
v. Lowell 275
Gilmore v. Hague 165
v. Holt 601
v. Spies 180
Gilpin v. Fowler 421
v. Hollingsworth 359
Gilson‘v. Stewart 127
Gisborne v. Hart 71
Gist v. Robinet 817
Givens v. Briscoe 141
v. Robbins 432
Givers v. Higgens 343
Gladstone v. McGowran 570
Glasier v. Eve 597
Glasscott v. Day 602, 605
Gleason v. Clark 142
v. Dodd 142
v. Smith 104, 261
Glezen v. Rood 486
Glossop v. Colman 478
v. Jacob 161
v. Poole 594
Gloucester Bank v. Salem Bank 522
Glover v. Black 379

‘ v. Thompson 165

Goddard v. Cox 529, 531
v. Hodges 531
v. Smith 452
Godefroy v. Dalton 145
uv. Jay 142
Godson v. Good 131
v. Richards 163
Godwin v. Thompson 460
Gold v. Whitcomb 445
Golding v. Nias 570
Goldshmidt v. Whitmore 388, 390
Goldsmid v. Bromer 463
Goldsworthy v. Strutt 258, 259
Golightly v. Ryn 644
Good v. Cheeseman 31
v. Hill 237
v. Lehan 27
v. Mylin 68a
Goodall v. New Eng. Fire Ins.

Co. 252
Goodell v. Raymond 74
Goodin v. Ferris 484
Gooding v. Morgan 123
Goodland v. Blewith 606
Goodman v. Harvey 172, 639
Goodrich v. Davis 411, 417

v. Walker 297
v. Warner 455, 457
INDEX TO CASES CITED. XXxiil

Section

Goodright v. Davids 325

v. Glazier 683

v. Gregory 297

v. Moss 151

v. Saul 150

Goodsell v. Myers 367

Goodtitle v. Baldwin 303

v. Newman 312

v. North 337

v. Otway 686

v. Tombs 336

v. Woodward 323

Goodwin v. Gilbert 110

v. Holbrook 609

v. Morse 112, 262

Goodyear v. Day 495

Goold v. Chapin 210

Gordon v. Buchanan 377

v. Harper 561, 616,

640

v. Little 219, 377

v. Martin 104

v. Mass. Ins. Co. 379

v. Strange 520

Gore v. Brazier 149, 264, 316

v. Gibson 171

Gorgier v. Mieville 639

Gorham v. Gale 580

Gorton v. De Angelis 454

Goss v. Quinton 638

Gouger v. Jolly 216, 217

Gough v. Davies 127

v. Gough 689

Gould v. Banks 607

v. Barratt 456

v. Glass 662.

v. Hulme 412, 417

v. Lasbur 24

v. Norfolk Lead Co. 63

v. Shirley 440

v. Weed 275

v. White 528

Governor, The, v. Rector 460

Govett v. Radnidge 208
Gov. &c. of Chelsea Water-

works v. Cowper 348

Gowan v. Jackson 483

Grable v. Margrave 253, 269

Grafton Bank v. Moore 183, 484

Graham v. Barras 383

v. Bennett 460

v. Bickham 258

v. Graham 72

v. Moore 305

v. Peat 618

 

Section

Graham v. Wigley 51
Grainger v. Hill 449, 452
Grand Bank ». Blanchard 188
Granger v. George 284, 431, 433,
448, 648

v. Granger 238

Granite Bank v. Ayers 180
Grant v. Austen 119
v. Button 143

v. Duel 271, 453, 457

v. Hunt i 161

v. Norway 64

v. Shutter 486

v. Thompson 371

v. Vaughan 14
Grantley v. Garthwaite 681
Gravenor v. Woodhouse 565
Gray v. Berryman 432
v. Bond 545

v. Jenks 330

v. Palmer 159

v. Russell ‘514

v. The Portland Bank 68,

261

v. Wass 141, 330, 518
Gray’s case 544, 568
Grayson v. Atkinson 676
Grazebrook v. Davis 79
Great North R. Co. v. Shepherd 221
Pond Co. v. Buzzell 245
Greeley v. Wyeth 480
Greely v. Bartlett 118
v. Dow 201

v. Hunt 177

v. Thurston 187

v. Tremont Ins. Co. 392

Green v. Bartram 98
v. Biddle 549

v., Brown 185

v. Button 449

v. Chapman 480

v. Chelsea 554

(or Dean) v. Crane 342

v. Dunn 645

v. Elmslie 387

v. Goddard 98

v. Hewitt 121

v. Jackson 138

v. Kemp 556

v. Liter 554

v. Lowell 584, 587

v. Merch. Ins. Co. 397
Greenfield Bank v. Leavitt 276, 642,
649

Greening v. Wilkinson 276, 649
XXXiv

Greenland v, Chaplin
Greenleaf v. Cook
Greenough v. Rolfe

INDEX TO CASES CITED.

Section
232 a
136

78

Greenwood v. Curtis 111
v. Misdale 79

Greeves v. McAllister 107
Gregory v. Bailey 126
v. Doidge 305

v. Hill 98, 514

v. Howard ~ 78

v. Piper 621

v. Williams 268, 268 b

Gregg v. Wyman 111
Grensell v. Grindlestone 441
Gridley v. Williams 444
Griffin v. Bixby | 617
v. Blanford 544

v. Fairbrother 240

v. Parsons 83, 94

Griffis v. Sellars 457
Griffith v. Goodhand 236
'  », Hodges 605

v. Lee 213

» vu. Lewis 421

v. Willing 37
Griffiths v. Teetgen 573
Grimaldi v. White 136
Grinnel v. Phillips 580, 621
v. Wells 573, 575, 579

Grissell v. Robinson 114
Griswold v. Plumb 644
Grose v. West 616
Gross v. Zorger 78
Grosvenor v. Danforth 141
Groton v. Dalheim 177, 195
Grymes v. Shack 220
Guerrant v. Tinder 457
Guest v. Elwes lid
Guild v. Hale 431
Guille v. Swan 224, 622
Guion v. McCulloch 25
Gullet v. Lewis 141
Gulliver xr. Cosens 120
Gummer v. Adams 800
Gunter v. Astor 258
v. Clayton 584
Gunton v. Nurse 644
Gutteridge v. Munyard 245 a
Guy v. Kitchiner 95
v. Livesey 88

v. Rand 317
Guyon v. Serrell 507
Guyther v. Pettijohn 646
Gwinn v, Whittaker 850, 538
Gwyllim v. Scholey 586

 

H.

Hacket v. Martin
Hadden »v. Mills
Haddow’»v. Parry
Haddrick v. Heslop
Hadlock v. Losee
Haggett v. Welsh”
Hague v. French
Hahn v. Corbett
Haigh v. De la Cour
Haight v. Holley
Haile v. Lillie
Haines v. Haines
Hale v. Handy

v. Lawrence

Section

20

456

380
458, 454.

v. The New Jersey Steam

Nav. Co.

v. Washington Ins. Co. 387

Hall v. Bainbridge 297

v. Bumstead 357

v. Butler 306

v. Conn. R. Steamboat 253

v. Davis 98

v. Dean 242

v. Doe 329

v. Fearnley 85, 94, 270

v. Featherstone 172

v. Gittings 331

v. Hale 207

v. Hall 676

v. Huse 159

v. Marston 109, 119

v. Palmer 297

v. Smith 25

v. Stevens 556

v. Suydam 458, 454, 459

v. Swansea 121

v. Thayer 435

Halifax v. Lye 164

Hallet v. Collins ~ 460

Halliday v. McDougall 183, 483

v. Ward 441

Hallock v. Miller 420
Hallowell and Alugusta Bank

v. Howard 601

Halsey v. Whitney 297

v. Woodruff 277

Halseys v. Hurd 261

Hambly v. Trott 108

Hamer v. McFarlin 424

v. Raymond 470

Hamilton v. Cutts 149, 244

v. Marsden 805

v. Starkweather 112
INDEX TO CASES CITED.

Hamilton v. Taylor
Hamlet v. Richardson
Hammersly v. Knowlys
Hammerton v. Hammerton
Hammon v. Huntley
Hammond v. Dufrene

Section
805
123
529

41
852
195

v. Mich. State Bank 59

Hanbury »v. Ella
Hancock v. Cook
v. Southall
v. Wentworth
v. Winter
Handcock v. Baker
Handley v. Rankin
Hands v. Slaney
Handy v. James
Haney v. Townsend
Hankey v. Wilson
Hankinson »v. Bilby
Hanmer v. Wilsey
Hannam v. Mockett
Hannen v. Edes
Hannum v. Belchertown
Hanover v. Turner .
Hansard v. Robinson
Hanson v. Buckner
Hantz v. Sealey
Harcourt v. Ramsbottom
Harden v. Gordon
Harding v. Brooks
v. Carter
v. Davies
v. Greening
v. Stokes
Hardingham v. Allen
Hardwick v. Blanchard
Hardy v. Hardy
v. Martin
v. Reed
Hare v. Cator
v. Horton
v. Pearson
v. Travis
Hargrave v. Dusenbury
v. Hargrave
v. Le Breton
Harker v. Birkbeck
v. Brink
v. Whitaker
Harlan v. Harlan
Harlow v. Thomas
Harman v. Claiborne
v. Harman
v. Rogers
v. Vaux

11,11 d
444, 447
621
660
414
99
296
865
677
226
165
417
6385 a
231

» 95
660, 662
108
156
264
460
79
128
426
65
603
416
287
119
203
672
258
640
239, 241
297
642
382
523
150
419
168
20

35
561
242
440
462
665
391

 

XXXV

Section

Harman v. Wright 800

Harmer v. Bell 26

v. Killing 367

Harmony v. Binham 121
Harper v. Charlesworth 663 °

v. Hampton 28

v. Hough 78

v. Luff kin 88, 573

v. Williamson 139

Harrington v. Payne 642

Harris v. Butler 573

v. Clap 263

v. Cook 625

v. Costar 221

v. Dennis 432

v. Eagle Fire Co. 407

v. Johnston 523

v. Jones 245 a

v. Mantle 237

v. Mitchell 73

v. Nicholas 251

v. Oke 108

v. Osbourn 142

v. Packwood e 218

v. Saunders 297, 642

v: Thompson 421

v. Tyson 301

v. Wall 367

Harrison v. Barnby 566

v. Bevington 461.4.

v. Bush 421

v. Elwin 674, 677

v. Fane 365

v. Fitzhenry 195

v. Harrison 261,461, 677

v. Jackson 61

v. Johnston 533

v. McHenry 67

v. Nixon 671

v. Phillips Academy 297

v. Rowan 672

v. Ruscoe 186

v. Southampton 461

v. Wright 257

Harrison’s case 688

Harrod v. Benton 593

Hart v. Allen - 219

v. Ayres 112

v. Boller 523

v. Crow 411

v. Frame 144

v. Horn 570

v. Prater 365

v. Sattley 212

Hartford Bank v. Hart 193
XXXV1

Section

Hartley v. Herring 420

v. Wharton 367

Hartman v. Keystone Ins. Co. 409

Hartness v. Thompson 133

Hartranft v. Hesser 419

Harvard College v. Gore 339

Harvey v. Brydges 622, 623

v. Epes 640, 642, 648

v. Tower 172

v. Watson 51

Harwood v. Goodright 581

Hasbrouck v. Tappen 256, 259

Hasser v. Wallis 120

Hastings v. Crunkleton 656

v. Shorley 605

Hatch v. Dennis 200

v. Dickinson 156

v. Foster 481

v. Hatch 297

v. Spofford 26

v. White 524
Hathaway v. Trenton, &c. Ins.

oO. 409
Hatharn v. King 691
Haughton v. Ewbank 66
Havard v. Davis 681
Haven »v. Foster 123
Hawes »v. Tillinghast 481

v. Wyatt 687
Hawkes v. Hawkes 681
v. Salter 198
Hawkins v. Cooper 220, 473
v. Grimes 688 a, 689

v. Hoffman 218, 221, 642

v. Plomer 589, 599

v. Ramsbottom - 133

v. Rutt , 525

Hawley v. Foote \ 31
Hay v. Brown 77
v. Graham 256

v. Ousterout 607
Haycraft v. Creasy 230 a
Hayden v. Johnson 440
Haydon v. Shed 622
v. Williams 440
Haydon’s case 277
Hayes v. Warren 114
uv. West. Railroad Co. 282 4
Haynes v. Leland 424
v. Morgan 110d

v. Sinclair 577, 579

Hays v. Younglove 457
Haythorn v. Lawson 420
Hayward v. Hague 608
v. Leonard 136

 

INDEX TO CASES CITED.

Section

Hayward v. New England Mu-
tual Ins. Co. 406
Hazard v. Loring 6038
v. Treadwell 65
Hazeltine v. Walker lla
Hazen v. Boston, &c. R. RB: 616
Head v. Head 150
Ueadlam v. Headley: 616
Headley v. Mildmay 277
Heald v. Carey 642
v. Davis 518, 527
Heard v. Bowers 236
Hearle v. Hicks 681
Heath v. Hubbard 646
v. Knapp 831; 556
v. Sampson 172
v. Tenney 71
v. Unwin 496, 506
v. West 614
v. Whidden 240
v. Williams 618
Heathcote v. Crookshanks 31, 519
Hebden »v. Hartsink 520
Heckscher v. McCrea 216 a
Hedge v. Drew 297
Hedgley v. Holt 365
Heeney v. Heeney 261
Heffner v. Heffner 463
Hegeman v. Western R. R. 222
Hellings v. Shaw 443
Helmsley v. Loader 158, 159
Helsby v. Mears 214, 218
Helsham v. Blackwood 418
Helyar v. Helyar 681
Hemmenway v. Towner 150
Heminway v. Saxon 273
Hemming v. Parry lid
Hemmingway v. Fernandez 240
Hemphill v. Boston ‘ 662
v. McClimans 431
Henderson v. Adams 71
v. Eason 36
v. Wild 480
Henfrey v. Henfrey 681
Henniker v. Wigg 533
Henning v. Withers 264
Henry v. Brown 13
v. Goldney 26
v. Jones 179
v. Peters 440
v. Raiman ‘601
Hensley v. Force 2914
Henslow v. Faucett 287
Henwood v. Oliver 605
Henzley v. Force 280
INDEX TO CASES UITED.

Section

Hepburn v. Auld 605
v. Sewall 276

Herne v. Bembow 655

Herrick v. Bennet 15
v. Lapham, 420

; v. Whitney 164, 206
Herring v. Polley 66
Hersfield v. Adams 211
Hervey v. Hervey 462
Heslop v. Chapman 454
v. Metcalf 142
Hesseltine v. Stockwell 642
Hetherington v. Kemp 193
Hewes v. Parkman 642, 648
Hewins v. Smith 660, 661
Hewitt v. Thompson 195
Hewlett v. Cruchley 459
Hewlins v. Shippam 631
Heyden v. Thompson 172
‘Heyes v. Heseltine 14
Heylin v. Adamson 176
v. Hastings 342
Heymen v. Parish 887, 390
Heyward v. Lomax 533
Hibbert v. Pigon 384
Hick v. Keats 112
Hickley v. Heyter 847, 348
Hickman v. Walker 342
Hickok v. Buck 637
Hicks v. Bingham 533
v. Cochran 462
Higbee v. Rice 23, 555, 556
Higgins v. Livermore 249
v. Whitney 635 a
Higginson v. Dall 379
v. York 622

Higham v. Baddely 605
v. Rabbett 659
Highmore v. Primrose , 126
Hight v. Wilson 674, 677
Hill v. Crosby 471
v. Davis 108

v. Featherstonhaugh 143

v. Manchester Waterw. Co. 483

v. Morey 625

v. Salt lid

v. Seales, 296

v. Thompson 494

v. Warren A73

v. White 131

v. Wright 566
Hilliard v. Cox 338
v. Richardson 232 b

Hillier v. The Alleghany Ins.
Co.
VOL. 1. d

405

 

Hills ». Bannister
Hilt v. Campbell
Hilton v. Burley

v. E. of Granville
Hinckley v. Fowle *
Hinde v. Whitehouse
Hindle v. Blades
Hines v. Kinnison
Hingham v. Sprague
Hinsdale v. Bank of Orange
Hinton v. Heather
Hiscocks v. Jones

XXXVil

Section
136
209
185
250
118
638
586
226
614
156
455
591

Hitchcock v. Humphrey 186, 186 a

v. Harrington
v. North
v. Whitney
Hitchen v. Teale
Hitchin v. Campbell
Hix v. Whittemore
Hoar v. Clute
v. Wood
Hoare v. Allen
Hobart v. Norton
Hobbs v. Lowell
Hoby v. Built
Hock v. Hock
Hocking v. Cooke
Hodgdon v. Dexter
Hodges v. Green
v. Hodges
v. The State
v. Windham
Hodgkinson v. Marsden
Hodgman v. Smith
Hodgskin v. Queensborough
Hodgson v. Anderson
Hodsall v. Stallbrass
Hodsden v. Harridge
v. Lloyd
Hodsdon v. Wilkins
Hotfman »v. Pitt
v. Savage
v. West Ins. Co.
Hoffnagle v. Leavitt
Hogan v. Grosvenor
Hogencamp v. Ackerman
Hogg v. Charlton
v. Emerson
v. Orgill
Holbrook v. Brown
Holder v. Coates

Holding v. Liverpool Gas Co.

Holford v. Hatch
v. Wilson
Holker v. Parker

330
458
253
624
108
371
521
421
56
382
656
142
694
15
219
687
74, 472
414
51, 56
289
481
243
518
263 b
36

684
115
316
665
408
116
675
280

26

490
484
379
617
267
239
195
141

86,
XxXxviii
Section
Holland v. Bird 46
v. Holland 226
v. Makepeace 200
Holliday v. Camsell 646
Hollingsworth 6. Brodrick 400
Hollis v. Pond 296
v. Smith 338
Hollister v. Hollister 54
v. Newlen 215
Holloway v. Abell 571, 573, 578
v. Turner 268
Holman v. Borough 13
v. Walden 21
Holmes v. Clifton 593
v. D’Camp 127, 128, 520
v. Doane 613, 615
v. Holmes 601
v. Kerrison 435
v. Peck 144
v. Porter 481
v. Seeley 627, 658
v. Wilson 622
Holton v. Button 330
Holyday v. Oxenbridge 99
Holyoke v. Haskins 317
Homer v. Dorr 249
v. Fish 448
v. Wood 480
Hone v. Mutual Ins. Co. 251

Hood v. New Haven, &c. R. R.

Co. 222

v. New York & N. H.R. RB.
Co. 210
Hooe v. Oxley 66
Hook v. Philbrick 78
Hoole v. Attorney-General 662
Hooper v. Williams 160
Hopcroft v. Keyes 565
Hope v. Harman 297
Hopewell v. Amwell 296
Hopkins v. Hopkins 560
v. Liswell 196
v. Richardson 124
v. Smith 426, 483
v. Young 236
Hopley v. Dufresne 195
Hore v. Whitmore 883
Horn v. Boon 454
v. Noel 463
Hornketh v. Barr 573, 576
Horsefall v. Testar 300
Hoshauer v. Hoshauer 675, 688
Hotchkiss v. Lathrop 275
v. Le Ro: 139
-v. MceVickar 640

 

INDEX TO CASES CITED.

Section
Hotchkiss v. Oliphant 275
Hotham v. East India Co. 404
Hough »v. Patrick 554
Houghtaling v. Kelderhouse 426

Houghton v. Houghton’ 72

Housatonic Bank v. Laflin 189
Househill v. Neilson 501 a
Houstman v. Thornton 386
Howard v. Howard 330
v. Miner 609, 610, 611

v. Newton 86

v. Witham 136
Howard Ins. Co. v. Bramer 405
Howe v. Merrill 163
v. Perry 275

v. Saunders 444
Howell v. King 471
v. Richards 300, 404

v. Young 433

Howes v. Martin 113
Howland v. Coffin 521
Huband v. Grattan 259
Hubbard v. Belden 104
v, Chenango Bank 604

v. Cummings 367

v. Little 554

v. Norton 242

Hubbell v. Rochester 614
Hubbersty v. Ward 64
Hubbly v. Brown 204
Huber v. Zimmerman 64
Hable v. Clark 688 a
Huckle v. Money 253
Hucks v. Thornton 390
Hudson v. Johnson 141, 518
v. Robinson 24

v. Swift 124

Hughes v. Hollingsworth 141
v. Large 171

v. Parks 296

v. Thomas 434

Hull v. Hull 48
Halle v. Heightman 103, 104
Hume »v. Oldacre 229, 624
v. Peploe 607
Humes v. McFarlane 686
Humphrey v. Moxon 203
Humphreys v Jones 440
Hunt v. Carlisle 251
v. Chambers 563

v. Haskell 649

v. Hunt 554

v. Jones 420

v. Rich 616

v. Rousmaniere’s Adm’r 68 a
INDEX TO CASES CITED.

Section
Hunt v. Silk 124
v. Spaulding 431
v. Stevens 338
v. The Cleveland 219
Hunter v. Agnew 367
v. Britts 883, 835
v. Cochran 331
v. French 452
v. Hudson River Iron &

Machine Co. 64, 64a
v. King 288, 590
Huntington v. Brinkerhoff 482
v. Rumnill 146
Huntley v. Bacon 272
v. Bulwer 143
Hurd v. Darling 646
v. Fletcher 243
Hurst v. Parker 431, 446
v. Rodney 240
Huscombe v. Standing 302
Huse v. Alexander 519
Hutchins v. Adams 106, 260
v. Nichols 201
Hutchinson v. Stiles 857

v. York, &e. R. R.
Co. 232
Huxham v. Smith 605
Huxley v. Berg 272
Hyde v. Bruce 406
v. Cookson 649
v. Jamaica 658
v. Louis. State Ins. Co. 392
v. Stone 647

v. Trent & Mersey Nav.
Co. 210, 219
Hylton v. Brown 837
Hynds v. Schenectady Ins. Co. 408

1

Tlot v. Wilkes 473
Tlott v. Genge 676
Isley v. Jewett 441, 520
v. Stubbs 561
Imason v. Cope 98
Incledon v. Berry 454, 455
Ingalls v. Bills 222
v. Bulkley 562, 645
v. Dennett 118
Ingersoll v. Jackson Q44
v. Jones 573, 579
Inglebright v. Hammond 251
Ingliss v. a 447
Ingraham v. Grigg 297

 

XXxix

 

Section

Ingraham »v. Martin . 561

Ingram v. Lawson 268 b, 420

v. Wyatts 675

Innis v. Crawford 217

In re 147

Insane Hospital v. Higgins 279

Treland v. Coulter 354

v. Higgins 620

v. Johnson 208, 209, 228

Treson v. Pearman 144, 149

Trish v. Cloyes 635 a

v. Smith 680, 689

Irvine v. Hanlin 37

Irving v. Manning 892

v. Wilson 121

Trwin v. Dearman 88, 573, 579

Iseley v. Lovejoy 414

Isherwood v. Whitmore 6lla

Israel v. Argent 363

v. Benjamin 159

v. Clark 22:

v. Rodon 684

Isteed v. Stonely 240

Ives v. Van Epps 186

Ivey v. Young lle

Izett v. Mountain 220
J.

Jack v. Martin 564

Jackaud v. French 480

Jacks v. Henderson 684

v. Stimpson 454

Jackson v. Ambler 78

v. Anderson 642

v. Ayres 305

v. Bartlett 141, 518

v. Betts 680, 681, 694

v. Bodle 297

v. Blansham 679

v. Bradt 317

v. Brownson 656

v. Bull 457

v. Burleigh 453

v. Bush 805

v. Carpenter 367

v. Chase 329

v. Christman 310, 677

v. Combs 334.

v. Cooley 306

v. Creal 305

v. Cuerden 805, 325

v. Davis 305

v. De Waltz 305
xl

INDEX TO CASES CITED.

Section

Jackson v. Deyo 325
v. Fuller 329

v. Graham 305

v. Green 329

v. Hale 561

v. Harrington 331

v. Harsen 305

v. Hinman 805

v. Langhead 329

v. Larroway 310

v. Legrange 672, 694

v. Loomis 337

v. Marsh 244

v. Mass. Mut. Ins. Co. 405

v. McLeod 325

v. Norris 805

v. Parkhurst 825, 331

v. Perkins 300

v. Randall 333

v. Reynolds 305

v. Richards 195

v. Rosenvelt 356

v. Rowan 325

v. Sample 317, 325

v. Scissam 805

v. Shillito 659

v. Sidney 317

v. Sisson 331

v. Smithson 230

v. Stackhouse 329, 330

v. Stewart 805

v. Styles 305

v. Thompson 672, 679

v. Van Dusen 674, 677

v. Vandyke 694

v. Vickory 694

v. Vosburg 805, 308

v. Walker 805

v. Warwick 1386

vu. Wheeler 825

v. Whitford 895

v. Wilsey 325

v. Winne 460

Jacob v. Hungate 172
Jacobs v. Humphrey 583
v. Pollard 115
Jacoby v. Laussatt 265, 644
Jaffray v. Frebain 133
James v. Biddington 40, 55
v. Browne 389

v. Campbell 85

v. Cohen 683

v. David 81

v. Hackley 352

v. Marvin 688

 

Section

James v. Phelps 455
v. Roberts 801
Jansen v. Ostrander 280
Janson v. Brown 630
Jarvis v. Dean 539, 660
Jayne v. Price 311
Jefferson v. Jefferson 656
Jeffrey v. Bastard 586
Jeffreys v. Gurr 114
Jefts v. York 123
Jenckes v. Smithfield 689
Jenkins v. Hopkins 88, 242
v. Phillips lid

v. Plume 347

v. Pritchard 309

v. Tucker 108, 114

Jenks v. Coleman 222a
v. Phelps 431
Jenner v. Joliffe 642
Jennings v. Camp 103, 104
v. Maddox 272

v. Major 605

v. Randall 368

Jerritt v. Ware 4380
Jervis v. Sydney 582
r Jesser v. Gifford 469
Jeune v. Ward 362, 363
Jevens v. Harridge 239
Jew v. Wood 806
Jewell v. Schroeppel 104
Jewett v. Davis 27
John v. Currie lle
Johns v. Arthur 601
v. Dodsworth 277

v. Stevens 539
Johnson v. Alston 142
v. Browning 450,457

v. Courts 271

v. Farwell 431

v. Hudson 415

v. Johnson 158, 520, 676

v. Jones 566

v. Kennison 205

v. Knowlton 78

v. Lawson 462

v. Lewis 599

v. Mason 63, 158, 565

v. McGruder 64

v. Peck 230 a

v. Perry 268 a,b

v. Smith 284, 431

v. Spiller 108

v. Sumner 265, 649

v. Thoroughgood 568

v. Ward 66, 880
INDEX TO CASES CITED.

Section

Johnson v. Weed 519, 523

v. Weedman 253
v. Wollyer 562
Johnston v. Brannan 28
v. Columbian Ins. Co. 394
v. Johnston 684
Johnstone v. Sutton 4538, 454
Jollie v. Jaques 514
Jones v. Brinley 112,118
v. Brooke 203
v. Brown 88
v. Boyce 221
v. Clayton 592
v. Conoway 448
v. Darch 166
v. Edwards 191
v. Fales 188
v. Fort 644
v. Givin 449, 452
v. Green 259
v. Hart 645
v. Hoar 108, 120
v. Hunter 485
v. Hill 655
v. Insurance Co. 400
v. Kennedy 520
v. Kitchen 95
v. Lewis 435
v. Mars 158
v. Marsh 324
v. Morgan 159, 160
v. Moore 342, 440
v. Nichols 449
v. Perchard 580
, vu: Pitcher 219
v. Ryde 522
v. Ryder 122
v. Savage 196
v. Smith 162
v. Stevens 138, 412,417
v. Thompson 55, 56
v. Turnour 165
v. Voorhees 215, 221
v. Wood 582
v. Wylie 82
v. Yates é 480
Jones Man. Co. v. Manufactur-
ers’ Mat. Ins. Co. 408
Jordain v. Wilson 240
Jordan v. Fall River Railroad 221
v. Wilkins 36, 37
Jory v. Orchard 322
Joyner v. Egremont 121
Judah v. Kemp 645
Judd v. Fox 560

d*

 

xli

Section

Judson v. Adams 481
v. Lake | 672

Juxon v. Thornhill 75

K.

Kaley v. Shed 272, 276, 635 a

Kampshall v. Goodman 440, 441
Kane v. Sanger 240, 293
Kannon v. McMullen 142
Kavanagh v. Gudge 627
Kay »v. Duchesse de Pienne 130
v. Marshall 493
Kaye v. Waghorne 28
Keaggy v. Hite 649
Kean v. McLaughlin 418
Kearney v. Boston & Worcester
R. BR. Corp. 278A
v. King 18,15
Kearslake v. Morgan 30
Keay v. Goodwin 615
Keck’s case 104
Keeble v. Hickringili 254, 622
Keech v. Hall 329
Keen v. Baltshore 81, 126
Keene v. Lizardi 272
v. Thompson 124

Keep v. Goodrich 72

Keeton v. Keeton 437
Keigwin v. Keigwin 676
Kell v. Nainby 139
Rellenberger v. Sturtevant 614
Kelley v. Donnelly 573, 576

v. Dutch Church of Sche-

nectady 244

v. Johnson 78
Kellogg v. Gilbert 141, 518
v. Ingersoll 242

v. Robinson 240

Kellow v. Rowden 359, 360
Kelly’s case 662
Kelsey v. Griswold 644
Kemble v. Farren 257, 258
v. Mills 195 a

v. Rhinelander 406

Kemp »v. Burt 144
v. Tinden 114
Kempland v. Macauley 584, 593
Kendall v. Stone 258, 255, 418
Kendrick v. McCrary 572, 576

v. Tarbell 69
Kenniston v. Little 629
Kennard v. Burton 267
xlii

Section

Kennebec Prop’rs v. Call 555, 557,
619

v. Laboree 430,

457

v. Springer 430,

555, 557

Kennebel v. Scrafton 684
Kennedy v. Duncklee 597, 629
v. Motte 202

v. Newman 241

v. Stron 648

v. Whitwell 261
Kennison v. Merrimac Ins. Co. 405
Kenny v. Clarkson 379

Kenrick v. Kenrick 44

Kensington v. Inglis 389
Kent v. Bonney 418
v. Ricards 141
v. Waite 659 a
Keplinger v. Griffith 159
Kerby v. Denby 270
Kerr v. Osborne 119
v. Shaw 243
v. Wilan 216
Kershaw v. Bailey 421

Kerwhacker v. C. C. &e. R. R. Co. 230

Kester v. Stokes 11b
Keyes v. Keyes 463
v. Powell 238
Keyworth v. Hill 642, 647
Kidd v. Belden 561
Kidder v. Parkhurst 421, 454
Kilburn v. Adams 543, 660
Kimball v. Cocheco R. R. 658
v. Rutland R. R. 215

v. Thompson 561, 570
Kimpton v. Waiker 240
Kincaid ». Howe “lla
Kinder v. Shaw 644
King v. Baker 570, 619
v. Barns 566

v. Boston & Wor. R. R. 232 6

v. Bridges 594

v. Hutchins 109

v. Milson 163, 172

v. Phippard 96, 633

v. Ramsay 280

v. Sears 114

v. State Mut. &e. Ins. Co. 405

v. Waring 419, 421
King of France v. Morris 37
Kingman v. Hotaling 155
v. Pierce 65, 67
Kingsford v. Marshall 391
Kingsley v. Bill 75

 

INDEX TO CASES CITED.

Section

Kingsley v. New Eng. &c. Ins. Co.
406, 408
Kingston Bank v. Gay 516
v. Gre 348
v. Phelps 72, 81
Kinlyside v. Thornton 655, 656
Kinnaird, Ld. v. Saltoun 298
Kinsey v. Heyward 432
Kirby v. D. of Marlborough 534
v. Sisson 156
Kirk v. Glover 141
v. Hiatt 64
Kirke v. Kirke 681
Kirkman v. Hargreaves 642
Kirtland v. Wanser 183
Kirton v. Braithwaite 606
Kist v. Atkinson 136
Kittle v. Merriam 488, 490
Kleine v. Catara 78
Kline v. Husted 648
v. Kline 528
Knapp v. Lee 136
v. Maltby 259
v. Salsbury 625
Knight v. Bennett 565
v. Foster 424
v. Hughes 113, 114
v. Wilcox 578, 579
Knobell v. Fuller 425
Knott v. Digges 226
v. Farren 443
Knower v. Wesson 461
Knowles v. Dow 251
v. Eastham 279
v. Michel 126, 127
Knowlton v. Bartlett 580
v. Reed 481
Knox v. Jenks 23
v. Kellock 554, 556
v. Light 600
Kortz v. Carpenter 243
‘Koster v. Innes 882
v. Jones 386
v. Reed 386
Kraus v. Arnold 602
Kuhen v. North 253
Kupfer v. Augusta 66
Kyle v. Gray ‘ 642

L.

Lacey v. Forrester 173
Lackwood v. Sturdevant 241
Laclough v. Towle 648
INDEX TO CASES CITED.

Section

Ladd v. Moore 638
v. North 560
Lade v. Shepherd 660
Lafonde v. Ruddock 437
Laidlaw v. Organ 397
Laing v. Colder 215
v. Meader 605

Lake v. Billers 597, 629
Lakin v. Ames 627
Lamb v. Burnett 95
v. Durant 378

v. Johnson 561
v..Lathrop 610

v. Mills 567
Lamb’s case 415, 416
Lambert v. Atkins 246
v. Pack 166

v. Sandford 141

Lamine v. Dorrell 265
Lamphier v. Phipos 144
Lanauze v. Palmer 192
Lane v. Applegate 29, 421
v. Cotton 68

v. Ironmongers 64a

v. Reynard 303, 331
Lang v. Rodgers 453
Langdon v. Bruce 622
v. Potter 141, 338, 518, 555

Lanter v. McEwen 418, 420, 425
Lapham v. Barnes 113
La Place v. Aupoix 642
Larned v. Buffington 269, 275, 426
v. Larned 662
Larrence v. Lanning 455
Larue v. Slack 317
Latham v. Rutley 209
Lathrop v. Blake 637
v. Cook 561

Latkow v. Eamer 594
Laugher v. Brefitt 265
Laughton v. Atkins 672, 681, 692
Lavender v. Adams 681
Laveroni v. Drury 219
Law v. Harwood 433
Lawrence v. Obee 473
v. Ocean Ins. Co. 394

v. Pond 316

v. Potts 142

v. Ralston 190

Lawson v. Bank of Salem 193
v. Lovejoy 367

v. Morrison 683

v. Sherwood 186

Lawton v. Sun Mutual Ins. Co. 390
v. Sweeney 129 a, 255

 

xlii

Section

Leach v. Beardslee 251
Leadbetter v. Fitzgerald 618 a
Leader v. Barry 180, 362, 461
v. Moxon 431

Leaird v. Davis 458
Leame v. Bray 84
Leatherdale v. Sweepstone 602
Leathers v. Ins. Co. 406
Leavitt v. Comer 78
Lebanon v. Olcott 473
Le Cheminant v. Pearson 402
Ledgard v. Thompson 295
Ledwith v. Catchpole 99
Ledyard v. Jones 599
Lee v. Abrams 38, 39
-v. Cooke 332

v. Gray 382

v. Howard, &c. Ins. Co. 406, 408

v. Muggeridge 114

v. Shore 117

v. Wolsey 93, 267
Leech v. Baldwin 220
Leery v. Goodson 118
Leeson v. Holt 216
Leffingwell v. White 195
Legg v. Benion 321
Legge v. Thorpe 195, 205
Legh v. Hewitt . 105
: v. Lewis 259
Leigh v. Shepherd 567
Leighton v. Wales 259
Leisherness v. Berry 614
Leland v. Farnham 161
v. Stone 259
Lemayne v. Stanley 674
Lempriere v. Humphrey 626
Lenox v. Leverett 183
v. United Ins. Co. 394

Lent v. Padelford 66
Leonard v. Allen 417, 420, 424
v. Gary 196

v. Leonard 371

v. Tidd 644

v. Trustees 523

Le Sage v. Coussman 524
Lesher v. Levan 295, 296
Lesley v. Nones 528
Leslie v. Rounds 232 4
Lethbridge v. Winter 625
Leveck v. Shaftoe 478
Le Veux v. Berkeley 437
Levi v. Essex 204
v. Waterhouse 218

Levy v. Peters 190
v. Wilson 158
xliv

Section

Lewis v. Alcock 485

v. Cosgrave 199
v. Crockett 236
v. Davis 448
v. Farrell 452
v. Gamage 141, 518
v. Hoover 87
v. Jones 30, 526
v. Lewis 672, 676
v. Maris 694
v. Marling 501
v. Peake 262
v. Peytarin 156
v. Ponsford 618
v. Price 471
v. Rucker 881
v. Sumner 141, 147
v. Thatcher 249
v. Trickey 108
Leyfield’s case 300
Liardet v. Johnson 490
Lide v. Lide 688
Lienow v. Ritchie 616
Liford’s case 619
Liggins v. Inge 475

Lightbody v. The Ontario Bank 522

Lightly v. Clouston 108
Lillie v. Lillie 681
Lilly v. Corne 287
Limbery v. Mason 681
Linard v. Crossland 618

Lincoln v. Saratoga R. R. Co. 268 }
v. Taunt. Copper Manuf. 78
Lincoln & Kennebeck Bank v.

Page 190
Lincoln Academy v. Newhali 444
Lindenberver v. Beall 191
Lindo v. Belisario 463
Lindon v. Hooper 120, 265
Lindsley v. Malone 66
Lindus v. Bradwell 161
Linford v. Lake 625
Linginfetter v. Linginfetter 683
Linningdale v. Livingston 104
Linsley v. Bushnell 258, 268 a

v. Lovely 64 a, 251

Lion v. Burtis 333
Liscom v. Boston Mut. Ins. Co. 407
Little v. Blunt 437, 439, 441
v. Libbey 430, 557

v. Megguier 430, 557

v. Palister 616

v. Phoenix Bank 195 a4

v. Rogers 478
Littledale v. Dixon 397

 

INDEX TO CASES CITED.

Section

Littledale v. Ld. Lonsdale - 232 4
Littlefield v. Shee 114
Littlehale v. Dix 93, 267
Littler v. Holland 235
Livermore v. Claridge 533
v. Johnson 448
Livingston v. Delafield 398
v. Ratcliff 141

v. Rogers 72

v. The Md. Ins. Co. 252

Lloyd v. Archbowle 478
v. Harris 75

v. Jewell 136

v. Maund 442

v. Wigney 434
Loader v. Kemp 245a
Lobdell v. Hopkins 609
Locke v. Garrett 641
v. N. Amer. Ins. Co. 379
Locksmith v. Creswell 641
Lockwood v. Perry 561
Lockyer v. Offley 390
Loeschman v. Mackin 640
Logan v. Austin 85
v. Houlditch 644

v. Murray 575, 576
Loker v. Damon 256, 261
Lomax v. Lomax 451
Londonderry v. Chester 460
Lone v. Chifney 172
Long v. Baillie 156
v. Billings 586

v. Hebb 641

v. Ramsey 295, 296

v. Zook 674
Longchamp v. Fish 678
v. Kenny 118

Longdill v. Jones 587, 588
Longford v. Eyre 678, 694
Lonsdale v. Church 263
Lord v. Baldwin 478
v. Chadbourne 196

v. Dall 409

v. Ferrand 516

v. Hall 65, 166
Lord Galway v. Matthews 485

Kinnaird v. Lady Saltoun 298

Peter v. Heneage 642
Suffield v. Bruce 107
Loring v. Bacon + 466, 473
v. Cook 605

v. Cunningham 347

v. Gurney 251

v. Neptune Ins. Co. 398

Losee v. Dunkin 199
INDEX TO CASES CITED.

Section

Lotan v. Cross 610

Lothrop v. Snell 199
Loud »v. Citizens’, &c. Ins. Co. 406,

408
Lougher v. Williams 240

Louisiana Bank v. Bank of U. 8. 172

Love v. Hall 142
Loveden v. Loveden 40, 41, 44
Lovejoy v. Jones 640
v. Whipple 199
Lovelace v. Reignolds 544
v. Reynolds 568

Lovell v. Marten 644
Lovering v. Lovering 51
v. Mercantile Ins. Co. 394

Lovett v. Bispham 454
Low v. Hutchinson 147
v. Nolte 71, 75
Lowber v. Shaw 203
Lowden v. Goodrick 89, 91, 278
Lowe v. Govett * 632
v. doliffe 694

v. Miller 646

v. Peers 259
Lowe’s case 22
Lowe’s Patent, in re 492
Lowell v. Gage 1638
v. Lewis 489, 494

v. Middlesex, &c. Ins. Co. 406

v. Spaulding 472
Lowfield v. Bancroft 277
Lowndes v. Anderson 118
Lowrey v. Murrell 522
Lowry v. Russell 251
Loxley r. Jackson 681
Lloyd v. Finlayson 338, 339

v. Harris 75

Lubbock v. Tribe 114
Lucas v. De la Cour 478

v. Novosilieski 528

v. Wasson 646

v. Worswick 123
Ludden »v. Leavitt 561, 637
Lukin v. Godsall 474
Lundie v. Robertson 107
Luther v. Winnissimmet Co. 537
Lutterell’s case 544
Lyford v. Toothaker 616
Lyle v. Clason 414

Lyman »v. Brown 26

v. United States Bank 520
Lynch v. Commonwealth 145
v. Hamilton 396
v. Nardin 232 b

Lynn v. Bruce 381

 

xlv

Section
Lyon v. Annable 120
v. Smith 678
Lysaght v. Bryant 186
v. Walker 538

M.
Macdonald v. Macdonald 448

Macdougall v. Robertson 79

Mace v. Cadell 130
Macferson v. Thoytes 165
Machell v. Ellis 642
v. Kinnear 478
v. Temple 678
Machu v. Lond. & S. W. Railr.

Co. 2324
Macklin v. Waterhouse 216
Maclean v. Dunn 59, 61
Macleod v. Wakley 418

Macomb v. Wilber 78

Macomber v. Parker 251
Macy ». Whaling Ins. Co. 251
Maddox »v. Miller 365
Mad River, &c. Railr. v. Fulton 213
Magee v. Scott 644
Magne v.- Seymour 592
Magrath v. Browne 577
Mainwaring v. Mytton 205
v. Newman 478

Maitland v. Goldney 424
Major v. Pulliam 253
v. Williams 683
Malcom v. Spoor 615
Mallory v. Aspinwall 297

Manchester Bank v. Fellows 139, 188

v. White 188
Mandeville v. Wilson 445,447
Maneely v. M’Gee 520
Mann v. Barrett 88, 573

v, Boston & W. R. R. Co. 278 h

v. Lang 347

v. Lovejoy 565

v. Marsh 529

v. Stephens 240
Manning v. Lunn 605
v. The Duke of Argyle 516

v. Westerne 530

Manny v. Jagger 494
Manson ». Felton 441
Mantel v. Gibbs. 302
Mantz v. Collins 583
Manvell v. Thompson 88, 573
Mapes v. Weeks 275
Marble v. Worcester 256
xlvi

Section
Marchington v. Vernon 109
Marin v. Ingersoll 190
v. Palmer 183
Markham v. Faweett 253
Markland v. Crum 240
Markle v. Hatfield 124, 164, 522,
523
Markley v. Amos 141
Marlow v. Pitfield 365
Marr v. Boothby 619
Marriott v. Hampton 121
v. Stanley 232 a
Marsden v. Goode 605
v. Reid 382, 396
Marsh v. Bancroft 586
v. Blythe 219
v. Bulteel 79
v. Gold 585, 594
v. Horne 218
v. Houlditch 532
v. Packer 79
v. Ward 25
v. Wood 79
Marshall v. Columbian Ins. Co. 406
v. Nagel 141
v. Parker 388

v. York, &c. Railway
0. 211
Marshall's case 688
Marshfield v. Marsh 338
Marsteller v. McClean 438
Marston v. Hobbs 240, 241
v. Roe 684
Martin v. Bell 582
v. Dortch 296
v. Fishing Ins. Co. 394, 401
v. Gillam 655
uv. Goble 471
v. Hardesty 458
v. Long 264
v. Martin 462, 463
v. Payne 88, 573, 576
v. Strachan 803
v. Thornton 74, 78
v. Winslow 179
Martins v. Gardiner 681
Martyn v. Blithman 115
v. Podger 597, 629
Maryatts v. White 629, 580, 534
Maryon v. Carter 235
Marzetti v. Williams 146, 584
Mason v. Potter 481
v. Waite 118
v. Wright 865
Massachusetts Bank v. Oliver 186

 

INDEX TO CASES CITED.

Section
Massey v. Goyner 478
Masten v. Masten 53
Master v. Cookson 278 h
Masters v. Baretto 160
v. Barrets 160
v. Pollie 617
Masterton v. Brooklyn 256
Mather v. Clark 363
v. Green 433
Mathers v. Pearson 111
Matson v. Buck 275
v. Magrath 684
v. Trower 73
Matthews v. Howard Ins. Co. 887
v. Medneger 649
v. Phillips 432
v. Redwine 280
v. Terry 93,97

v, W. Lond. Waterw.
Co. 2324
Matthie v. Potts 388
Matts v. Hawkins 617
Maunder v. Venn 88, 572
Maus v. Maus lla
Mawman ». Gillett 478
Mawson v. Blane 367
Max v. Roberts 209, 228
Maxwell v. Chapman 461
v, Jameson 113
May v. Brown 275
v. Coffin 195
v. Harvey 644
v. Kornhaus 268
v. Proby 591
Mayall v. Boston & Me. R. R. 212
Maybin v. Railroad Co. 212
Mayer v. Jadis 166
Mayhew v. Boyce 221
v. Eames 220
ve. Herrick 646
v. Neison 213
v. Thayer 108
Maynard v. Frederick 74, 78
v. Maynard 297
v. Nekervis 207
Mayne’s case 236
Mayor v. Johnson 156

Mayor, &e., of Carmarthen v.

Lewis lid
Mc Alexander v. Harris 275
McAllister v. Hammond 226

vw. Reab 136
v. State 873
McAlmont v. McClelland 269

McAndrew v. Bell

880
INDEX TO CASES CITED. xlvii

Section |
McArthur v. Campbell 15
v. Ld. Seaforth 261
v. Sears 219
McAulay v. Birkhead 579
McBride v. McLaughlin 253
McBurney v. Cutler 626
McCartee v. Camel 278 f |
McCarver v. Nealey 141
McClintick v. Cummins ‘302
McClure v. Burton lla
v. Dunkin 263
McCombie v. Davies 642
McConnell v. Brown 297
McCoon v. Smith 363
McCormick v. Manny 490, 506
v. Sisson 454

McCready »v. S. Car. Railw. Co.

230

McCrillis v. Hawes 648

McCullough v. Irvine 656

McCurry v. Hooper 371

McCutchin 7. Bankston 484

McDill v. MeDill 296

McDonald v. Black 68a
v. Blackstone Canal

Co. 533

v. Lindall 660

v. Rooke 454
McDougle v. Royal Exch. Ass.

Co. 391
McDowell v. Fraser 397
McElroy v. Nashua, &c. R. R.

Co. 222
McFadden v. Maxwell 207
McFarlin v. Essex Company 537,

543
McGee v. Prouty 518, 527
McGregor v. Cleveland 478
McGurn v. Brackett 458, 454
MclIniffe v. Wheelock 606
McIntyre v. Trumbull 580
McIver v. Humble 239
McJilton v. Love 26
v. Smizer 609
McKee v. Manice 115
McKenire v. Fraser 310, 679
McKinley v. McGregor 562
McKinney »v. Clark 463
v. Neil 222
v. Rhoades 297
McKinstry v. Solomons 73
McLachlan v. Evans 118
McLellan v. Bank of Cumber-
land 453

v. Crofton 11 e, 118, 445,

447

 

Section

McLemore v. Powell 202
McLeod v. M’Ghie 649.
McMahon »v. Ryan 688
McManus »v. Crickett 68, 621
McNaghten’s case 373
MeNair v. Gilbert 156
McNamara ». King 89, 253, 269
MeNeil v. Perchard 587
McPherson v. Chedeall 412
v. Daniels 414

v. McPherson 38

v. Rathbone 484

McQueen »v. Fletcher — 528
McTavish v. Carroll 658
Mead v. Daubigny 418
v. Degolyer 104

v. Paddock 136 a

v. Small 190

v. Young 158
Meade v. Wheeler 259
Meads v. Cushing 253
Meany v. Head 560, 561
Mease v. Keefe 669

Mechanics’ Bank v. Hildreth 167
v. Merchants’

Bank 251

v. Williams 556

Mecorney v. Stanley 163
Medlycot v. Assheton 628
Medway v. Needham 460
Meggot v. Mills 531
Meighen v. Bank 251

Meigs v. Mutual, &e. Ins. Co. 251
Melledge v. Boston Iron Co. 62, 520
Mellen v. Western R. R. Corp. 616

v. Whipple 107, 110, 616

Melville v. Brown 647
Melvin v. Whiting 539
Meice v. Mence 681
Mendez v. Carreroon 169
Mercantile Bank v. Cox | 480
Mercantile Marine Ins. Co. v.
Corcoran 111
Mercer v. Jones 276, 649
v. Walmsley 576
Merchants’, &c. Ins. Co, v. Wil-
son 251
Merest v. Harvey 89, 258, 271
Merle v. Andrews 435
Merriam v. Bayley 444
v. Cunningham 364, 365,
368
v, Leonard 440

v. Middlesex Ins, Co. 408
v. Mitchell 458, 455,
xlviii

Section

Merrill v. Howe 635 a

v. Merrill 258
Merritt ». Lyon 563, 597
Merryweather v. Nixan 115
Mersereau v. Norton 646
Meserole v. Archer 603
Merwin v. Camp 295

v. Huntington 111,121
Messer v. Woodman 107

Methuen Co. v. Hayes 61

McGill v. Rowand 221
Michigan Central R. R. v.

Ward 210
Middleborough v. Rochester 464
Middlemore v. Goodale 240
Middleton cv. Brewer 600

v. Price 629

Mildmay v. Dean 625

Miles’s Will 674

Miles v. Cattle 220
v. Connecticut Mutual Ins.

Co. 406, 409

v. Moodie 440

Milford v: Worcester 460, 464

Milgate v. Kebble 640

Millard v. Baldwin 70

Miller v. Adams 433

v. Adsit 561

v. Atlee 117

v. Baker 621

v. Bartlett 4.20

v. Butler 256, 416, 417

v. Carothers 694

v. Delamater 166

v. Hackley ‘ 196

v. Halsey 244

v. Lancaster 442

v. M’Brier 305

v. Clenachan 485

». Miller 108, 120, 414, 690

v. Race 122

v. Smith 136

v. Steam, &e. Co. 210

v. The Mariners’ Church 261

v. Webb 156

Milligan v. Wedge 232 a

Millikin v. Brown 519

v. Tufts 533

Millne v. Wood 595

Mills v. Bank of U. 8. 16, 186,

189

v. Fowkes 444, 532, 535

v. Gore 297

v. Spencer 424

v. Western Bank 115

 

INDEX TO CASES CITED.

Section

Milman v. Dolwell 625
Milne v. Gratrix 79
Milnes v. Branch 240
v. Duncan 123

Miner v. Clark 244
Minet v. Gibson 14, 166
Minnesinger v. Kerr 426
Minnett v. Whitney 484
Minor v. Mechanics’ Bank 133
v. Thomas 688
Minter v. Hart 492
v. Mower 489, 494

v. Wells 492
Minton v. Woodworth 280
Mires v. Solebay 642, 644
Mitchell v. Dall 534
v. Gibbes 290

v. Jenkins 453

v. King 605

v. Kingman 185, 370

v. Lunt 843, 345

v. Stavely 78

v. Warner 242, 244, 557

v. Williams 644

Mixer v. Coburn 251
Mochring v. Mitchell 278 h
Moffat v. Van Millingen 478
Moffatt v. Parsons 606
Moilliet v. Powell lid
Moir v. Royal Ex. Ass. Co. 383
Moises v. ‘Thornton 412
Moller v. Lambert 478
Monckton v. Pashley 229
Monk »v. Noyes 245 a
Monprivatt v. Smith 278, 634
Montague v. Perkins 435
Montoya v. Lond. Assur. Co. 387
Montriou v. Jeffreys 143
Monumoi v. Rogers 625
Moodey v. Pender 457
Moodie v. Reed 675
Moody v. Stracey lla
v. Whitney 638, 649

Moon v. Andrews 351
v. Raphael 649

Moor v. Cornville 660
v. Hill 127
Moore v. Abbot 232 a, 473
v. Adam 89

v. Campbell 251

v. Eddowes 128

v. Fitchburg R. R. Co. 68

v. Greene 448

v. Michigan C. R. Co. 210

v. Moore 678
INDEX TO CASES CITED. xlix

Section Section
Moore v. Moore 112, 618, 683 | Mott v. Kip 583
v. Rawson 476 | Mottram v- Mills 163, 202
v. Robinson 226 | Moulton v. Scruton 261
v. Sheridine 209 |} Mountford v. Gibson 845, 649
v. Taylor 634 | Mountstephen v. Brooke 440, 441
v. Terrell : 427 | Mowry v. Todd 112
v. Wilson 36, 209, 212 | Mucklow v. Mangles 638
v. Woolsey 409 | Muldrow v. McCleland 238, 241
Moores v. Wait 640 | Mulgrave v. Ogden 642
Moorhead v. Fry 104 | Mulheran v. Gillespie 524
Mooring v. Mobile, &c. Ins. Co. 520} Mullet v. Hook 25
Moorsum v. Moorsum 51 v. Hulton , 274, 424, 425
Moran v. Dawes 229,571,573 | Mulvehall v. Millward 572
__v. Portland, &c. Co. 211 | Mumford v. Freeman 440
Moravia v. Levy - 127 v. McKay 647
Moreland v. Bennett 290 | Munn v. Baker 217
Moreton v. Hardern. 226 | Munns v. Dupont 295, 454
Morgan v. Banta 539 | Munroe »v. Allaire 75
v. Brydges 582 v. Cooper 172
v. Edwards 300 | Munson v.N. E. Ins. Co. 394
v. Hughes 452 | Munt v. Stokes 341
v. Ide 637 | Murgatroyd v. Murgatroyd 579
v. Mather 78 | Murphy v. Staton 219
v. Moore 556 | Murray v. Bogue 515
v. Palmer 121 v. Baker 437
v. Richardson 136 v. Burling 641
v. Seaward 490, 498, 494 v. Carrett 156
v. Smith 78 v. E. I. Co. 435
Moriarty v. Brooks 83 v. Lon 458, 554 -
Morland v. Pellatt 587 v. McHugh 124
Morrell v. Trenton, &c. Ins. Co. 409 v. Somerville 25
Morris v. Barker 424 v. 8. Car. Railw. Co. 232 a4
v. Corsan 454 | Muschamp v. Lancaster & P. J.
v. Davies 150 Railway Co. 210
v. Edgington * 545 | Musgrave v. Drake 159, 172
v. Hauser 191 | Muskett v. Hill 226
v. Miller 49,461 | Musselbrook v. Duncan 75
v. Ross 78 | Mussey v. Eagle Bank 251
v. Scott 449,457 | Myrick v. Dame 480
Morrison v. Beckey . 109 /
v. Berkey 113,118
v. Funk - 528 N.
Morse v. Aldrich 240
v. James 105 | Nagle v. Baylor 300
Mortara v. Hall 366 | Nailing v. Nailing 688
Mortimer v. Mortimer 45 | Naish v. Tatlock 114
Morton v. Shoppee 82 | Narragansett Bank v. Atlantic
v. Webb » 26 Silk Co. ‘ 62
v. Westcott 188 | Narraguagus v. Wentworth 141
Morey v. Bardett 230 | Nash v. Drew 64
Mosely v. Reade 126 v. Hodgson 529
Moses v. Macfarlan 117 v. Nash : 279
. v Norris 591 v. Whitney 592
Mossop v. Eadon 156 | National Exchange Co. v. Drew 68
Mosyn »v. Fairbrigas 86 | Naylor v. Collinge 656

 

VOL. I. é.
1 INDEX TO CASES CITED.

Section

Naylor v. Naylor 52
v. Semmes 251

Neal v. Erving 66
v. Sheffield 28
Neale v. Ledger 73
Nealley v. Greenough 302
Neave v. Moss 305
Needham v. Dowling 421
Neel v. Deans 124
Neff v. Thompson 561
Neil v. Neil 678
Neill v. Morley , 369
Neilson v. Hartford 489,490
Nelson v. Clough 17
v. Salvador 383

v. Suffolk Ins. Co. 387

v. Whittall 158
Nelthorpe v. Dorrington 649
Nesbit v. Nesbit 240
Nettles v. Railroad Co. 219
Nettleton v. Sikes 627
Neve v. Hollands 444
Newberry v. James 490
Newbold v. Lamb 296
v. Sims 39

v. Wright 249
Newborn »v. Just 218
New Brunswick Co. v. Tiers 219
Newburyport v. Boothbay 462

Newburyport Ins. Co. v. Oliver 393

Newby ». Read 386
Newcastle Fire Ins. Co. v. Mac-
Morran ~ 406
Newell v. Downs 454
New England Bank v. Lewis 193
Newhall v. Ireson 467, 474
v. Wheeler 23, 555
New Hampshire, &c. Ins. Co. v.
Hunt 104
New Haven County Bank v.
Mitchell 193, 295
New Haven Steamboat Co. v.
Vanderbilt 267
Newhouse v. Godwin 689
Newkirk v. Sabler 627
Newland v. Douglas 78
Newman v. Bean 481
v. Newman 291
Newmarch v. Clay 529
New Marlborough v. County
Commissioners 141
Newnham v. Tetherington 483
Newport v. Hardy 135
Newsam v. Carr 458
Newsom v. Thornton 380

 

Section

Newsome v. Graham 120
Newton v. Clarke 678
v. Galbraith 602

v. Grand Railway 506

v. Harland 622

v. Rowe 425

v. Vaucher 493

v. Wilson 621

New York Central Ins. Co. v.

National Pro. Ins. Co. 64 a
New York State Bank. Fletcher 519
New York & H. R. R. Co. v.

Marsh 121
Niagara Bank v. Rosevelt 529,531
Niblo v. N. Amer. Ins. Co. 407
Nichole v. Allan 108
Nichols v. De Wolf 251

v. Luce 657, 658

v. Pool 174

v. Todd 554
Nicholson v. Coghill 453, 455
v. Croft 260, 377

v. Frazier 517

; v. Gouthit 195
Nickleson v. Stryker 88, 578, 576
Nicoll v. Glennie 644
Nicolls v. Bastard 640
Nightingal v. Devisme 112, 118
Nightingale v. Withington 166
Niles v. Sawtell 240
-Niver v. Best 111
Nixon v. Jenkins 644
v. Palmer 66

Noble v. Adams 638
v. Bates 259

v. Kennoway 250, 251
Noding v. Alliston 676
Noel v. Murray 520
Noell v. Wells 339
Noke v. Awder 240
v. Ingham 133
Nolan v. Jacksor 141
Norbury v. Meade . 665
Norcross v. Widgery 430, 557
Norfolk, Ex parte 25
Norman v. Wells 240
Norris v. Smith 331
North v. Miles 583
v. North 58

Northampton Pap. Millsv. Ames 614

North Bank v. Abbott 197
Northcutt v. Northeutt 674
Northop v. Wright 557
North Western "Railway Co. v.
Sharp 147
INDEX TO CASES CITED. li

Section

Norton v. Babcock 244

v. Gordon 414

v. Lewis 195, 197

v. Marden 123

v. Norton 869

v. Savage 73

Bae v. Seymour 159, 161

v. Warner 55
Norway Plains Co. v. Boston &

M. R. RB. 210

Nowell v. Roake 336, 456

v. Sands - 625

Norwood v. Manning 530

Noyes v. Cushman 481

v. Dyer 556

v. Butane &B. BR. R. Co. 210
Nutting v. The Connecticut River

R. BR. Co. 210
Nye v. Smith 599
oO.

Oakapple v. Copons 321
Oakes v. Brydon 318
v. Marey 307

v. Wood 95
Oakham v. Holbrook 472
Odiorne v. Colley 637
v. Maxey 66, 68

Offut v. Offut 135
Ogle v. Cook 694
Ohl v. The Eagle Ins. Co. 378
Okell v. Smith 136
O'Kelly v. O'Kelly 297
Olcott v. Rathbone 112, 520
Oldham v. Bateman 110
v. Peake 417

Oldnall v. Deakin 679
O’Linda v. Lathrop 657
Olmstead v. Beale 186 a
Omaly v. Swan 524
O’Neall v. Farr 682, 688
Onions v. Tyrer 680, 681
Onslow v. Orchard 277
Oothout v. Thompson 446
Orange Co. Bank v. Brown 221
Ord v. Portal 167, 478
O'Reilly v. Morse 503, 506
Oridge v. Sherborne 186
Orpwood v. Barkes 414
Orr v. Churchill 258
Orser v. Storms 614
Osborn v. Cook 675
Osborne, In re 668

 

Section

Osgood v. Breed 672

v, Green 561, 568

v. Pearsons 118

v. Spencer 135

O’Shaughnessy v. Haydn 275

Oswald v. Leigh ; 290

Oswego v. Oswego Canal Co. 662

Otis v. Gibbs 265

v. Jones 635a

Ottawa v. La Salle Co. 21

Oughton v. Seppings 121

Outwater v. Nelson 251

Oviatt v. Sage 646

Owen v. Barrow 65

v. Burnett 216

v. Lewyn 642

v. O’Reilly 255

v. Owen 45

Owenson v. Morse 523

Owings v. Hull 66

Oxenham v. ole 350

Oxford Bank v. Haynes 186

Oystead v. Shed 621
P.

Pack v. Alexander 193

Packard v. Agawam, &c. Ins. Co.

406

Packer v. Gillies 638
Paddock v. Forrester 544
- v. Franklin Ins. Co. 386,

399, 400, 401

v. Salisbury 424

Padget v. Priest 343
Padmore v. Lawrence 421
Page v. Cushing 449
v. Hatchett AT71, 642

v. Mann 158

v. Robinson 614

v. Wiple 453

Pain v. Whittaker 640
Paine v. Bacomb 108, 104
v. Hall 675
Palethorp v. Furnish 65
Palmer v. Fletcher 471
v. Manning 158

v. Reiffenstein 142

v. Stevens 258, 298, 614
Panton v. Holland 230, 466
v. Williams 454
Paradine v. Jane 235
Parchman v. McKinney 533
Pardee v. Drew 221
li

Section
Parfit v. Thompson 401
Parient v. Plumtree 591
Parish v. Burwood 285
v. Stone 136, 199
v. Whitney 242
Park v. Bates 264
Parke v. Ollat 675
Parker v. Atfield 351
v. Bailey 229, 571
v. Barker 484
v, Colcord 26, 431
v. Downing 518
v. Dunn 243
v. Elliot 226, 571
v. Farley 452, 458, 454
v. Fenn 584, 592
v. Foot 539 a
v. Gordon 178

v. Great Western Railw.
Co. 121
v. Hanson 206, 207
v. Hill 297
v. Huntington 449, 453, 457
v. Norton . 265
v. Osgood 521
v. Parker 669, 672
v. Perkins 603
v. Potts 401
v. Rolls 144
v. Smith 657
v. Stiles 488,489,493,496,505
v. United States 113
v. Way : 150
Parkhurst v. Jackson 520
v. Kinsman 495
Parkin v. Bainbridge 681
Parkins v. Cox 656
Parkman v. Osgood 446
Parks v. Boston 276
Parminter v. Symonds 164
Parmiter v. Coupland 411
Parramore v. Taylor 688
Parrott v. Thatcher 51, 252
Parry v: Fairhurst lld
v. House 305, 565
Parsons v. Crosby 478
v. Hall 78
v. Hancock 847
v. Loyd 621
v. Plaisted lla
Partington v. Butcher 443
Parton v. Hervey 460
Partridge v. Beere 826
v. Coates 285
Pasley v. Freeman 230 a

 

INDEX TO CASES CITED.

Pasmore v. Bousfield

Section

24,

131

Patapsco Ins. Co. v. Coulter 387, 390
v. Southgate

Patience v. Townley

Patrick v. Colerick
v. Putnam
v. Woods

Patten v. Patten

v. State Bank

Patterson v. Black

v. Patterson
Pattison v. Aull

v. Jones

v. Robinson
Paul v. Simpson
Pawson v. Watson
Payne v. Jenkins-

v. Rogers
Paynter v. Williams
Payson v. Caswell

v. Whitcomb
Peabody v. Denton
Peacock v. Harris

v. Peacock
v. Rhodes
Pearce v. Davis

v. Ornsby

v. Whale
Pearcy v. Dicker
Peardon v. Underhill
Pearson v. Henry

v. Inlow
. Lemaitre
. Lord
. McGowran
. Parker
. Wightman
Pease v. Hirst

v. Naylor
Peck v. Murtry

v. Sill
Pecke v. Ambler
Peckham v. Lyon
Peebles v. Reading
Peel v. Thomas

eee

ee

Peele v. Merchants’ Ins. Co.

v. Suffolk Ins. Co.

Peer v. Humphrey
Peeters v. Opie
Pegg v. Stead
Peerce v. Benjamin

v. Pender

v. Tobey
Peirse v. Bowles
Peirson v. Steinmyer

392
195
627
104

lla

641
156

278 h

441,

419,
638,

284,

1

693
533
423
644
843
896
126
473
114
457
112
156
129
477
163
520
418
412
295
544
347
622
271
111
418
113
295
478
851
238
lla
435
64a
331
481
392
892
638
86 a
136

635 a, 642

180
444
608
481
INDEX TO CASES CITED. lili

Section Section

Pemberton v. Pemberton 682 | Perry v. Slade 126

Pembroke’s, Countess of, case 655 v. Turner 518

Penaro v. Flournoy 442 v. Watts lle

Pendleton v. Phelps * 438 | Peter, Ld. v. Heneage 642

Pendrel v. Pendrel 150 | Peters v. Anderson 530

Penfield v. Jacobs 440 v. Ballistier 66

Penfold v. Westcot 423 v. Craig 79

Penley v. Watts 245 a v. Fleming 365

Penn v. Glover 243 v. Foss 430

v. Ward 95 v. Warren Ins. Co. 387

Penniman v. Munson 481 | Peterson v. Ayre 261

v. Rotch 445 v. Loring 74

v. Tucker 382 | Petit v. Addington 88, 89

Pennington v. Gibson 279 | Peto v. Hague 65

v. Yell 147 | Petrie v. Lamont 621

Penny v. Porter 209 | Pettee v. Prout 163

Penruddock’s case 472 | Pettibone v. Derringer 489

Penson v. Lee 382 | Pettigrew v. Pringle 383

People, The, v. Cunningham 466 | Pettison v. Hull 529

v. Dunning 580 | Pettit v. Addington 278

v. Howell 520 | Peyton v. Mayor, &c. of London 473

v. Humphrey 461 | Peytona, The, 219

v. Miller . 461 | Pfeiffer v. Grossman 622

v. Niagara 136, 562 | Pfiel v. Vanbatenburg 155, 169,

v. Robinson 373 170, 527

v. Rowland 293 | Phealing v. Kenderdine 579

v. Sprague 373 | Phelps v. Hartwell 690

Pepper v. Burland 104 v. Williamson 440
Peppin v. Shakespear 631 | Philbrook v. New Eng. &c.

v. Solomons 383 Ins. Co. 406
Percival v. Blake 124 | Phillimore v. Barry 639
Perkins v. Cummings 199, 523 | Phillips v. Allen 150, 152

v. Eastern Railr. Co. 232 a ». Astling 186

v. Hart 128 v. Blake 522

v. Jordan 251 v. Bridge 145

v. Lyman 258 v. Covert 615

v. Perkins 58, 431, 689 v. Cummings , 24

v. Pitts 330 v. Earle 220

v. Savage 111,121 v. Hall 621

v. Smith 645 v. Howgate 95, 278

v. The Franklin Bank 249 v. Hoyle 254, 579

v. Washington Ins. Co. 62 v. Hunter 460

v. Wing 75 v, Jansen 414
Perley v. Chandler 616 v. Merrimac, &c. Ins, Co. 405

v. Foster 594 v. Naire 392

v. Little 440 v. Peters 441
Perminter v. Kelley 646 v. Phillips 440
Pernam v. Weed 658 v. Smith 264
Perrins v. Hill 139 v. Stevens 245 a
Perris v. Roberts 536 v. Warren 170, 527
Perry v. Chandler 614 | Phillipson v. Mangles 584, 589

v. Dover 121 | Philpot v. Bryant 902
v. Jackson 438 v. Dobbinson 564
v. Marsh 232 b v. Holmes 625
v. Roberts 529 v. Kelley 642, 644

 

e*
liv

Section

Phipps v. Chase 180, 188
v. Milbury Bank 188
Phipson v. Kneller 195
Phyn v. Royal Exch. Ass: Co. 390
Pickard‘v. Bankes 118
Pickering v. Rudd 622, 634
Pickett v. King lla
Picquet v. Curtis 174, 435
Picton v. Jackson 412
Pidge v. Tyler 23

Pierce v. Benjamin 265, 272, 276, 649

v. Blake 142

v. Butler 204

v. Crafts 112-

v. Drake 523

v. Fuller 259

v. Hakes 295

v. Jackson 585, 593, 594

v. Pendar 188

v. Pickens 229, 624

v. Pierce 51

v. Thompson 449

v. Tobey 444
Piercy, In re 678
Pierre v. Fernald 539 a
Pierson v. Hooker 190
v. Hutchinson 156

v. Post 620

Piggott v. Eastern Railw. Co. 230
Pigott v. Holloway 295
v. Kemp 95

Pike v. Brown 109
v. Emerson - 141
Pilkington v. Hastings 569, 607
Pilkington’s case 569
Pimm »v. Grevill 569
Pinchon v. Chilcott 126, 127
Pindar v. Wadsworth 254
Pinley v. Bagnall 139
Pintard v. Tackington 156, 520
Pippett v. Hearn 449
Pirie v. Anderson 378
Pitcher v. Bailey 115
v. Livingston 264

v. Tovey 239

Pitkin v. Frink 104
Pitt v. Chappelow 164, 165
v. Donovan 428

v. Smith 800

v. Yaldon 144
Pittman v. Foster 441
Pitts v. Gaince 226
v. Tilden 263
Planche v. Fletcher 896
Planck v. Anderson 599

 

INDEX TO CASES CITED.

Section

Platt v. Tuttle 644
Pleasant v. Benson 324
Plenty v. West 681
Plomer v. Long 529, 534
Pluckwell v. Wilson 220
Plumer v. Merchant 349
v. People 302
Plummer v. Brown 643
v. Dennett 449

v, Gheen 455

Plunkett v. Cobbett 418
v. Penson 360
Plymouth v. Carver 242
Pocock v. Billings 200
Poignard v. Smith 430, 457
Polglase v. Oliver 601
Polhill v. Walter 230 a
Pollard v. Barnes 545
v. Shaaffer 240

Pond v. Williams 444, 581 a
Ponsonby v. Adams 259
Pool v. Pratt 460
Poole v. Huskinson 660
v. Palmer 161

v. Smith 156

v. Symonds : 637
Pooley v. Millard 156
Poor v. Robinson 554
Pope v. Biggs 566
v. Davies 284
Popkin v. Popkin 53
Popley v. Ashley 523
Poplin v. Hawke 672
Popplewell v. Pierce 230
Pordage v. Cole 136 a
Porter v. Cole 297
v. Cooper 126

v. Hill 440

v. Judson 180, 182

v. Noyes 242

v, Sayward 265, 589
Porthouse v. Parker 164
Portland Bank v. Stubbs 642

Dry Dock, &c. Co. v.

Portland 279
Postlethwaite r. Mounsey 347
v. Parkes 88, 574
Postmaster-Gen. v. Furber 533
Ue Ridgway 292

Pothonier v. Dawson 645
Pott v. Cleg 112
v. Eyton 481
Potter v. Lansing 599
v. Morland 251

v. Taylor 242, 518
INDEX TO CASES CITED.

Section

Potter v. Tyler 200
v. Webb 672

Potts v. Ward 719

Pouverin v. Louis. State Ins. Co. 379

Powell v. Deveney 232 b
v. Gudgeon 387
v. Henry 64a
v. Little 518 |
v. Powell 463
v. Waters 207
Power v. Butcher 118
v. Wells 108
Powers v. Russell 297
Powley v. Newton 338
v. Walker 105, 251
Pownall v. Ferrand 44
Poynton v. Forster 452
Pratt v. Ayler 272
v. McCullough 674
v. Putnam 66, 141
v. Sanger 659 a
v. Swaine 435
v. Thomas 106, 260
Pray v. Maine 518
v. Pierce 556
v. Waterston 686
Prescott v. Finn 6m
v. Hubbell 249
v. Trueman 241, 242, 244
v. Wright 635 a, 642
Presgrave v. Saunders 563
Preston v. Boston 111
v. Christmas 28, 31
Prettyman v. Waples 338
Price v. Hewett 368
v. Marsh 64
v. Neale 122
Prichard v. Campbell 624
Prideaux v. Collier 205
Pridgen v. Pridgen 674
Priest v. Cummings 19°
Priestley v. Fowler 232 a
Prince v. Wilbourn 67
Pringle v. Wernham 471
Pritchard v. Atkinson 242
. v. Brown 295
v. Papillion 253
v. Powell 538
Probate v. Knouth 865
Procter v. Hodgson 658
Proctor v. Lainson 583
v. Proctor 52
Propr’s of Kennebec Purchase
v.. Boulton 277
v, Springer 23

 

lv

Section
Propr’s Trent Nav. v. Wood 219
Prossar v. Woodward 562
Provender v. Wood 110
Provost v. Calder 233
Pryor v. Coggin 681
Puckford v. Maxwell 520
Pujolas v. Holland =. 274
Pullen v. Hutchinson 116
Purcell v. Macnamara 453, 454
Purdy v. Austin 440
v. Powers 480
Purnel’s case 28
Pursell v. Horn 84
Purves v. Landell 144
Putnam v. Bowker 660
v. Mercantile Ins. Co. °379
v. Putnam 48, 460
v. Ritchie 549
v. Tillotson 251
v. Wyley 614
Putnam Free School v. Fisher 557
Putney v. Lapham 24
Pynchon v. Stearns 656
Q.
Quarles v. Littlepage 342
v. Porter 141
Quarman v. Burnett 232 a
Queen, The, v. Millis 460
Quimby v. Buzzell 295
v. Melvin 74
Quincy v. Rogers 681
Quinebaug Bank v. Tarbox 26
Quinn v. Fuller 171, 478
v. Kimball 561
R.
Rackham v. Jessup 618
Radkin v. Powell 561
Rains v. McNarry 646
Rainwater v. Durham 365
Rambler v. Tryon 690
Ramchander v. Hammond 447
Ramsdell v. Soule 112
Ramuz v. Crowe 156
Rand v. Sargent 621
Randall v. Cleveland 651
v. Everest 258
v. Randall 45
v. Rich 113
v. Rotch 249
lvi INDEX TO CASES CITED.

Section 7 Section

Randall v. Sweet 365 | Reginav. James 82
v. Van Vecten . 62 v. Leicestershire 236

Randle v. Webb 95 v. Lovett 416
Randleson, Ex parte 53 v. Moreau 90
v. Murray 232a v. Newton 461

Randolph v. Kinney 240 v. Petrie 662
Rankin v. Roler 292 v. Simonsto 49, 461
Rapp v. Palmer 251 v. Upton 461
Rapson «. Cubitt 232a v. Watts 472
Ratcliff v. Huntley 272 | Rehoboth v. Hunt lla
Rathbone v. Orr 491 | Reid v. Furnival 205
Rathbun v. Rathbun 297 v. Payne 187
Ravenga v. McIntosh 459 | Reignolds v. Edwards 660
Ravenscroft v. Hunter 681 | Reilly v. Jones 258, 259
Rawlins, In re 676 | Reinhold v. Alberti 141
Rawlinson v. Clarke 481 | Relyea v. Ramsay 80
Rawson v. Morse 625 | Remington v. Congdon 421
Ray v. Law 449 | Renard v. Fiedler 123
v. Hill 678 | Renner v. Bk. of Columbia 156,.

v. Lines 539 a 188

v. Walton 675 | Respublica v. De Longchamps 84,
Raymond ». Baar 124, 523 v. Roberts 48
v. Bearnard 104 | Revett v. Brown 618

v. Merchant 520 | Revill v. Satterfit 576

Rayne v. Orton 31 | Rew v. Barber 523
Reab v. McAllister 136 | Rex-v. Almon 64, 416
Read v. Bertrand 38 v. Barr 663
v. Dunsmore lid v. Beare 416

v. Golden 603 v. Benedict 660
Ream v. Rank 88, 226, 273 v. Bigg 62
Reay v. Packwood 207 v. Bp. of Chester 121
v. White 30 v. Bliss 663
Reddie v. Scoolt 578 v. Bramley 151
Reddington v. Farrar lla v. Brampton 463
Redman v. Hendricks 563 v. Burdett 416
v. Wilson 387 v, Claphan 363

Reece v. Rigby 144 v. Commerell 450
v. Taylor 95 v. Dawes 471

Reed v. Batchelder 367— v. Downshire 659
v. Bias 272 v. Gutch 416

v. Cutter 492, 507 v. Hermitage 544

v. Davis 89, 269 v. Horseley 641

v. McGrew 124 v. Hudson 660

v. Prentiss 136 v. Hunt 39

v. Taylor 449 v. Johnson 416

v. Upston 520 v. Johnston 416
Reedy v. Seixas 189 v. Kettleworth 450
Reel v. Reel 690 v. Leake 660
Rees v. Marq. of Headfort 172 v. Lloyd 660, 664
v. Waters 76, 78 v. Longnor 295
Reeves v. Morris 561 v. Luffe 150
Reggio v. Braggiotti 262 v. Navestock + 251
Regina v. Cotesworth 84 v. Nichol 82
v. East Mark 662 v. Pierce 415

v. Hill 3714 v. Rosinski 82

 
INDEX TO CASES CITED.

Section |
Rex v. St. George 284 | Riggs v. Thatcher
v. St. James 665 | Right v. Bawden
». St. Michael’s 239 | v. Cuthell
v. Sheward 627 v. Price
vy. Smith * 450 | Riley v. Gerrish
v. Stannard 426 v. Water Power Co.
v. Sutton 412 | Ringgold v. Dunn
v. Tippett 544 | Ripley v. Colby
v. Walter 416 | v. Dolbier
v. Watson 198, 416 | Rippon v. Norton
v. Woodfall 416 | Rising v. Stannard
. Wright 660 | Risley v. Baltinglass

v
Reynolds v. Kennedy

v. Ocean Ins. Co.
Rhind v. Wilkinson
Rhodes v. Vinson

380,
681, 688 a Rivers v. Griffith

 

457 , Rison v. Berry
392. Ritchie v. Putnam
389 | Ritger v. Parker

Rice v. Hollenbeck 276 | Riviere v. Bower
v. Hosmer 433, 586 | Roach »v. Ostler
v. Stearns 206 v. Wadham
v. Thompson 292) Robbins v. Borman
v. Tower 405, 408 v. Farley
Rich v. Jones 106 v. Otis
v. Lambert 220 v. Willard
v. Topping 203 | Robert v. Garnie
Richards v. Gilbert 219 | Roberts v. Bayles
v. Lond. &c. Railw. 221 v. Bethell
v. Peake 626 v. Bradshaw
v. Richards 309, 354, 424 v. Camden.
Richardson v. Allan 166, 207 v. Carr
v. Anderson 66, 393 v. Connelly
v. Atkinson 642 v. Elliot
v. Boston Chem. Lab. 605 v. Gallagher
v. Chassen 253, 268 v. Jackson
v. Dorr 341 v. Karr
v. Duncan 111, 121 v. Randel
v. Field 330 v. Reed
v. Gilbert 512 v. Round
v. Hall 114 v. Trawick
v. Hespy 480 v. Wentworth
v. Jackson 605 v. Whiting
v. Maine 390 v. Wood
v. Maryland Ins. Co. 432 v. Wyatt
v. Reed 560 | Robertson v. Barber
v. Richardson 44 v. Cole
Richmond v. Heapey - 480 v. Crane
Richter v. Selin 190, 483 v. Ewer
Rickert v. Snyder 244 v. French
Rickets v. Salway 544 v. Kennedy
Riddle v, Sutton 347 v. Lynch
Rider v. Ocean Ins. Co. 379 v. McNeil
Ridley v. Taylor 203 v. Money
v. Tindall + 32 | Robeson v. Ganderton
Rigden v. Walcott 275 | Robinson v. Alexander
Rigg v. Curgenven 49, 286, 461 v. Ames
427 v. Austin

Riggs v. Denniston

 

lvii

Section
584

827

823
674, 678
163
637
440
481
642
109
622
686
73
19
660
608
471
160
240
616
440
440, 443
484

530

455

161

191

417

664

572

686

523

300

625

560

434

682

597, 688
688

556

B47

637

686

463

644

387

878

295

104

79

377

181

447

195

208, 642

615,
lviii

INDEX TO CASES CITED.

Section

Robinson v. Baker 208
v. Bland 38

v. Burleigh 431

_ v. Cone 94, 267

v. Cook 605

v. Dunmore 210

v. Ferreday 605

v. Gould 801, 302

v. Mansfield 621

v. Manuf. Ins. Co. 883

v. McDonald 641

v. Read 523

v. Ward 148

v. Yarrow 164, 165

Robison v. Borman 616
v. Gosnold 108

v. Otis 440, 443

v. Swett 311

Robson v. Godfrey 104
v. Rolls 642
Rochdale Canal v. Radcliffe 543
Rock v. Layton 347
Rockwell v. Saunders 561
Rockwood v. Allen 258
v. Wilson 467

Roden v. Ryde- 158
Rodgers v. Nowill 253
Rodney v. Strode 277
Rodriguez v. Tadmire 458
Roe v. Charnock 251
v. Gore 462

v. Harvey 303

v. Lonsdale 817

v. Lord 809

v. Rowlston 488

v. Summersett 315

v. Swazey 357

v. Wiggs 324

d. Wood v. Doe 73
Rogers v. Arnold 561,563
v. Clifton 419

v. Crombie 265

v. Danforth 237

v. Fales 268 a

v. Hoskin 26

v. Imbleton 226

v. McCune 64

v. Pitcher 565

v. Rogers 51, 672

v. Stephens 107

v. Sumner 587
Rogers’s case 372
Rohan v. Hanson 533
Rolfe v. Peterson 259
Rollins v. Clay 616

 

Rolt v. Watson
Rooke’s case

Rooke v. Midland R. Co.

Rookwood’s case
Roop 0. Brubacker
Root v. Chandler

v. Fellows

v. King
Roper v. Harper
Ropes v. Barker
Rordasnz v. Leach .
Rose v. Bryant

v. Groves

v. Story

v. Wilson
Roseboom v. Billington
Rosewell v. Prior
Roskell v. Waterhouse
Ross v. Clifton

v. Gould

v. Hunter

v. Johnson

v, Lapham

v. Milne

v. Overton

v. Philbrick
Rotan v. Fletcher
Rotch v. Hawes
Rotherham v. Green
Rouse v. Southard
Rowcroft v. Lomas
Rowe v. Young
Rowell v. Montville
Rowland v. Veal
Rowlands v. Springett
Rowley v. Ball

v. Horne

Roworth v. Wilkes
Rowson v. Earle
Royce v. Burrell
Ruan v. Gardiner
Ruble v. Turner
Rucker ». Hiller

Ruckmaboye v. Mottichund

Ruffey v. Henderson

Section
156, 520
560

208

109

78

614, 621
2914
275

86

273
167, 478
291, 444
474
(253

98, 100
291

472

209

78

430, 558
390
213, 642
424

109

78

629

648

642

544

448

443

174

660
597, 629
189

156

216

514

142
357°

252

20

195

437

638

Rugby Charity v. Merryweather 660

Rugg v. Barnes
Ruggles v. Keeler
v. Lawson
v. Lesure
Rulton v. Rulton
Runcorn v. Doe
Rundle v. Little
Rundlett v. Small
Runyan v. Nichols

640

439

297

625

41,

545

625

531

186, 148
INDEX TO CASES CITED.

Section
Ruoff’s Appeal 674
Rushby ». Scarlett 65
Rushworth v. Taylor 645

Russ v. Butterfield 597

Russell v. Blake 337

v. Boehm 380

v. Coffin 295

v. Falls 678

v. Jackson 658

v. Ledsam 489

v. Lewis 556

v. Livingston 211

v. Lytle 31

v. Palmer 145, 148, 270

v. Skipwith 19

v. S. Britain Soe. 103

v. The Men of Devon 473

v. Tomlinson 277

v. Turner 599

Rust v. Baker 355

Rustell v. Macquister 418

Rutherford v. Evans 414

v. MelIvor 123

Rutland’s, Countess of, case 649

Ryan v. Clarke 626
v. Cumberland, &c.

Bes 2326

v. Goodwin 489, 493

Ryder v. Ld: Townsend 605

Rynes v. Clarkson 681

Ss.

Sackett v. Owen 78

Sackrider v. McDonald 279

Sadler v. Evans 124

Safford v. Annis 243

Sager v. Portsmouth R. R. Co. 215

Salem Bank v. Gloucester Bank 68,

124, 159, 528

Salisbury v. Gousgas 642
v. Hale 186

Salmon v. Horwitz 649
v. Smith 133
Salomons v. Stayely 155
Saltmarsh v. Tuthill 189
Saltous v. Commercial Ins. Co. 401
Sampson v. Coy 271, 273
v. Hasterby 240

v. Henry 89, 618

v. Smith 97

Sanborn v. Neilson 51
v. Southard 190
Sandback v. Thomas 456

 

lix

Section

Sanderson v. Busher 383, 384
v. Lamberton 209

Sandford v. Dillaway 195
v. Mickles 199

Sands v. Gelston 441, 442
Sandwich v. Fish 533
Sanford v. Gaddis 414
Santee v. Keister 817
Sapsford v. Fletcher 567
Sarell v. Wine 168, 342
Sargent v. Adams 103
v. Appleton 201

v. Ballard 539, 543

v. Blunt 640

v. Franklin Ins. Co. 261

v. Larned 506

v. Morris 212

v. Robbins 163

v. Southgate 200
Sasportas v. Jennings 301
Satterlee v. Frazer ' 141
Satterthwaite v. Dewhurst 575
Saunders v. Darling 586
v. Edwards 433

v. Frost 605

v. Graham 604

v. Mills 424

v. Saunders 434
Saunderson v. Baker 580, 582, 621
v. Bell 518

v. Nicholl 346, 348

Savage v. Brewer 449, 457
v. Lane 847

v. Smith 596

Savery v. Goe 607
Savill v. Barchard 252
Saville v. Roberts 449
v. Robertson 483
Savory, In re 674
e. Chapman 141
Sawtelle v. Jewell 20
Sawyer v. Kendall 5438, 557
i v. Mercer 348
Saxton v. Johnson 112
Sayer v. Kitchen 161
Sayles v. Briggs 450, 452
Sayre v. E. of Rochford 96, 633
Scales v. Jacob 440
Scarce v. Whittington. 139
Scheibel v. Fairbain » 453
Schenck v. Cuttrell 239 b

v. Mercer Co. &c. Ins.
Co. 406
Schermerhorn v. Van Volken-

burgh 648
lx

Schloss v. Cooper
Schlosser v. Lesher
Scholey v. Walsby’
v. Walton
Scholfield v. Bayard

Schopman v. Boston & W. R. R.
C

0. :
Schultz v. Astley
Scott v. Brest

v. Elmendorf
. Galloway
Hull
. McLellan
. Nelson
. Nichols

ay

. Shepherd

. Simpson

. Waithman

v. Wilson

Scotthorn v. South Staff
Scoville v. Griffith
Scrimshire v. Scrimshire

eeeeseece

Section
614
431
170
441
195

222
164
284
141
295
247
203
107
435
536
84, 94, 226
455
586
457
210
208
460

Scripture v. Lowell, &c. Ins. Co. 387,

407

Seruby v. Fordham 681
Scrugham v. Wood 297
Scudder v. Worster 561
Scurry v. Freeman 284
Seager v. Sligerland 578
Seago v. Deane 107, 126,127
Seamans v. Lorin 382
Searight v. Calbraith 608
Searle v. Price - 45
Sears v. Dillingham 691, 692
v. Lyons 272
Seaver v. Dingley 560, 561
v. Lincoln 179,188

v. Phelps 369, 370

v. Seaver 113
Seaward v. Lord 443
Secor v. Babcock 455
Seddon v. Senate 248
Sedgwick v. Hollenback 241, 243
Sedley v. Sutherland 86, 624
Seers v. Hind 245
Seibert v. McHenry 563
v. Price 454, 455

Selby v. Bardons 95
Selden v. Beale 118
v. Hickock 646
Selkirk v. Adams 75
Sellers v. Holman 528
v. Till 412
Senhouse v. Christian 471

 

INDEX TO CASES CITED.

Section

Sentance v. Poole 370
Sergeson v. Sealey 278 d
Seton v. Low 396
Severin v. Keppell 642
Severn v. Keppel 644
Sewall v. Sparrow 2914
Seyds v. Hay 642
Seymour v. Maddox 232 6b
v. Mintern 28

v. Van Slyck 529, 530
Seymour’s case 682
Shadwell v. Hutchinson 469
Shafer v. Smith 89, 273
Shaf her v. State 460
Shaller v. Brand 679
Shamburg v. Commagere 207
Shank v. Case 420
Shannon v. Comstock 261 a
v. Shannon 561
Shapleigh v. Pilsbury 556
‘Sharp v. Bailey 195
v. Grey 221, 222

v. Hawker 147

v. United Ins. Co. 378

v. Whittenhall 560

Sharrod v. The Lond. &c. R. Co. 224

Shattuck v. Allen 411,421
v. Maley 457

Shaver v. Ehle 206
Shaw v. Becket 117, 265
v. Broom 200

v. Crawford 539

v. Dartnall 118

v. Mitchell 251

v. Neville 676

v. Nudd 261

v. Picton 118, 530, 636

v. Reed 68

v. Robberds 405, 408

v. Stone 644

v. Tunbridge 594

8 v. Woodcock 121
Shearer v. Ranger 242
Sheckell v. Jackson 421,424
Shed v. Brett 193
Shedd v. Wilson 533
Sheels v. Davies 136
Shelby v. Hearne 240
Sheldon v. Soper 640
Shelley’s case 346
Shelton v. Braithwaite 189
Shepard v. Johnson 261
v. Merrill 274
Shepherd v. Hampton 261
v. Temple 136
INDEX TO CASES CITED.

Section
Shepherd v. Watrous 78
Sheppard v. Sheppard 651
Sheriff v. Wilkes 159

Sheriffs of Norwich v. Bradshaw 590
Sherman v. Connecticut R.

Bridge lla
Sherrow v. Wood 78
Sherry v. Schuyler 635 a
Sherwood v. Sutton 448
Shewell v. Fell 599
Shilock v. Passman 144
Shipley v. Todhunter 416,421
Shipwick v. Blanchard 648
Shires v. Glascock 678
Shirley v. Todd “200
Shitler v. Bremer 440
Shock v. McChesney 452
Shoemaker v. Benedict 444
Shoman »v. Allen 142
Shores v. Caswell 141
Shorland v. Govett 622

Short v. McCarthy

488, 435, 448
v. Pratt 74

Shortley v. Miller 420, 426
Shott v. Strealfield 484
Shotwell v. Few 645
Shove v. Webb 124
Shrewsbury v. Smith 618
Shult v. Baker (651
Shumway v. Holbrook 692
Shurman v. Wells 212
Shute v. Barrett 269
Shuttleworth v. Stephens 206
Sibley v. Lambert 440, 444
v. Phelps 444
Sibree v. Tripp 28
Sicard v. Davis 296
Sice v. Cunningham 199
Sickles v. Mather 445
Sidford v. Chambers 165
Sigfried v. Levan 295
Siggers v. Brown 195"
Sikes v. Johnson 270
Sill v. Rood 135
Silsby v. Foote 507
Simister’s Patent 496

Simkins v. Norwich, &c. Steam-

boat Co. 210
Simmons v. Anderson 638
v. Bradford 145, 599

v. Norton 656

v. Simmons 42

v. Swift 638

v. Wilmott 605

Simon v. Bradshear | 141

VOL. II.

 

lxi

Section

Simonds v. White 898
Simonton v. Barrell 141
Simpson v. Bowden 108
v. Egeington 518

v. Lethwaite 659

v. McCaffrey 267

v. Morris 84, 98

v. Robinson 418, 422

v. Swan 117,118

v. Walker 687

Sims v. Davis 539
v. McLendon 454
Sinclair v. Eldred 458, 456
v. Jackson 331

270, 569, 607,
615, 622, 628

Six Carpenters’ case

Skaife v. Jackson 517

Skee v. Coxson 79

Skelding v. Warren 204

Skelton v. Hawling 347

Skevill v. Avery 98

Skillin v. Merrill /14

Skilton v. Winslow 160

Skinner v. Stocks 109, 478
v. Lond. &c. Railway

Co. 222

v. Upshaw 648

Slaney v. Wade 462

Slater v. Jepherson 557

v. Rawson 240, 554

vy. Swann 231

Slaughter v. Barnes 582

Sledge v. Pope 89

Slegg v. Phillips 204

Sleght v. Kane 437

Slingerland v. Morse 603

Sliver v. Shelbeck 362

Sloman v. Cox 528

v. Herne 584

v. Walter 258

Slosson v. Beale 258, 259

Sluby v. Champlin 441

Sly v. Edgeley 232 a

Small v. Gibson 400

v. Gray 451

v. Proctor 430, 558

v. Small 672, 675

v. Smith 172

Smallcourt v. Cross 593

Smart v. Hutton 580

Smedley v. Hill 348, 349

Smith v. Allison 51

v. Anders 601

v. Ashley 421

v. Atlantic, &c. Ins. Co. 26
lxii

INDEX TO CASES CITED.

 

Section Section

Smith v. Bank of Washington 186 | Smith v. Shackleford 452
v. Barrow 338 v. Shaw 434
v. Bartholomew 519 v. Shepherd 219
v. Birmingham Gas-Light v. Sherman 256
Co. 62 v. Smith 104, 112, 220, 259,

v. Bonsall 672 473, 527
v. Bossard 114 v. Spooner 428
v. Bowditch 147 v. State 662
v. Bowditch, &c. Ins. Co. 406 v. Steele 672
v. Bromley 121 v. Taylor 412
v. Brown 28 v. Wait 681
v. Chester 165, 166 v. Webb 279
v. Compton 118, 114, 116 v. Westmoreland 444
v. Dedham 468 v. Whiting 74, 189, 190
v. De Wruitz 200 v. Wigley 533
v. Dickenson 258 v. Williams 379
v. Dovers 19 v. Williamson 561
v. Eastman 440 v. Wood 415, 421
v. Ely 489 v. Wright 219, 249, 481
v. Fox 433 v. Young : 644
v. Fuge 378 | Smithson v. Garth + 277
v. Goodwin 226 | Smout v. Ilberry 230 a
v. Hart 599 | Smyrl v. Niolon 219, 877
v. Higbee 660} Snell v. Phillips 431
v. Hil 439 v. Snell 300
v. Hodson 108 v. Snow 417
v. Hollister 414 | Snow »v. Allen 459
v. Jones 686 v. Franklin 28
v. Kelley 367 v. Perry 522, 601
v. Knowelden lid v. Snow 53
v. Lipscomb 142 v. Ware - 136, 261
v. Lloyd 557 | Snowball v. Goodricke 583
v. Lord 160 | Snowden v. Davis 121
o. Lovett 270 | Snyder v. Andrews 424
v. Lusher 478 | Sohier v. Lorin: 201
v. Macdonald 457 | Soilleaux v. Soilleaux 41, 46
v. Marsack 164 | Solomon v. Turner 199
v. Mayo 367 | Solomons v. Dawes 645
v. McCampbell 242 v. Medex 227
v. McClure 14, 160 v. The Bank of England 172
v. McManus 183 | Soltau v. De Held 473
v. Mercer 122 mers v. Balabrega 141
v. Milles 339, 614 | Somervill v. Hawkins 421, 422
v. Moore 209 | Somes v. Skinner 240, 317
v. Nilsen 114 | Sommer v. Wilt 253, 449
v. Oliphant 865 | Soulden v. Van Rensselaer 431
v. Pickering 166 | Soulesby v. Hodgson 73
v. Plomer 640 | Soule v. Bonney 302
v. Potter 78 | Southard v. Rexford 253
v, Robertson 872 | Southey v. Sherwood 515
v. Royston 626 | Southwick v. Estes 68
v. Rutherford 224, 623 v. Hayden 517
v. Scott 887 | Southworth v. Smith 601
v, Screven 529 | Soward v. Leggett 245 a
v. Sear 164 | Spalding v. Vandercook 136
INDEX TO CASHES CITED.

Section

Sparhawk v. Bartlett 586
v. Bullard 307

Sparks v. Purdy 643
* Sparrow v. Chrisman 480
Spaulding v. Barnes 642
Spear v. Newell 35, 39
Speed ». Buford 554
Speight v. Oliviera 574
Spencer v. Billing 483
v. Daggett 219

v. Halstead 261

v. Hartford 524

v. Marriott 243

v. Tilden 258
Spencer’s case 240
Spies v. Newbury: 186
Spoor v. Holland 637
Sprague v. Baker 149, 240, 244
v. Kneeland 563

v. Waite 660, 662

Spratt v. Spratt 19
Spring v. Coffin 124
v. Gray 447
Springfield v. Hampden 660
Sprowl v. Kellar 219
Spybey v. Hide 608
Squire v. Hollenbeck 272, 635 a
Staats v. Ten Eyck 264
Stacey v. Miller 662
v. Smith 662
Stackhouse v. O’Hara 141
Stafford v. Clark 231
Stafford Canal Co. v. Hallen 473
Stammers v. Dixon 615
Stanard v. Eldridge 242
Standen v. Standen 151, 461
Stanley v. Barnes 668
v. Gaylord 615

v. Kean 672

v. Perley 556

v. Towgood 245 a
Stannard v. Ullithone 149
Stante v. Prickett 47, 86, 624
Stanton v. Stanton 440
v. Wetherwax 689

v. Wilson 365
Stanwood v. Scovel 11 6
Staple v. Spring 472
Staples v. Hayden 659 a
v. Okines 205

Starbuck v. New Eng. Ins. Co. 400
Staring v. Bowen 679
Stark v. Chesapeake Ins. Co. 19

v. Parker 136 a
Starkey v. Mill 109

 

Ixili

Section
Starr v. Jackson 614
State Bank v. Hurd 194
State, The, v. Armfield 623
v. Bates 47
v. Brunson 48
v. Bruntley 302
v. Campton 660
v. Carver 662
v. Davis 84
v. Guild 363
v. Herman 150
v. Hunter 662
v. Marble 662
v. Miller 461
v. Nudd 662
v. Pearce 48
v. Rosswell 461
v. Spicer 373
v. Wallace 48
De Wells 426
v. Winkley 462
Stead v. Anderson 500
v. Williams 50la
Stearn v. Mills 347
Stearns v. Barrett 258, 492
v. Haven 477
v. Hendersass 557
Stebbing v. Spicer 163
Stebbins v. Merritt 62
Stedman v. Gooch 520
Steele v. Inland W. L. Nav. Co. 473
v. Price 688 a
v. Steele 435
Stegall v. Stegall 150
Stehman’s Appeal 39
Steinman v. Magnus 28, 80, 526
Stephens v. Cady 513
v. Elwall 645
v. Myers 82
Stephenson v. Hart +212, 642
v. Walker 58
Sterling v. Adams 454
« uv Peet 264
Sterndale v. Hawkinson 533
Stetson v. Faxon 468
v. Mass. Ins. Co. 408
Stevens v. Beals 166
v. Fassett 459
v. Gladding 513
v. Lynch 207

v. Midland, &c. Rail-
way Co. . 449, 453
v. Reeves 251
v. Vancleve, 674
v. Whistler 616
lxiv

; Section
Stevenson v. Lambard 240
v. McReary 462
Steward v. Scudder 251
Stewart v. Doughty 615
v. Drake 242, 244
v. Martin 635 a
v. Wells 560, 583

St. George’s v. St. Margaret’s
~ Parish 150
Stickles v. Arnold 78
Stiles v. West 369
v. White 262
Still .. Halford 71, 73
Stilson v. Tobey + 280
Stimpson v. Eggington 518
v. Railroads 253
Stimson v. Balt. &c. R. R. 506
St. John v. Standring 646
v. Van Santword 210
Stoallings v. Baker 481
Stock v. Mawson 121
Stocker v. Brockelbank 481
v. Harris 403
v. Merrimack Ins. Co. 399
Stockman v. Parr 189
Stoddard v. Kimball 199, 200
Stoddart «. Palmer 584
Stoever v. Whitman’ 249
Stokes v. Bate 338
v. Brown 367
v. Lewis 114
v. Saltonstall 221
Stockley v. Harnidge 453
Stone v. Codman 232 a, 276

v. Crocker 271, 449, 453, 454,

455

v. Damon 690

v. Forsyth 315

v. Marsh 518

v. National Ins. Co. 390

v, Seymour 530

v. Sprague 601

v. Stevens 449, 457

v. Swift 459

v. Varney 424, 425
Stonehouse v. Elliot 99, 621
Storer v. Logan 208
Story v. Challands 421
v. Odin 471

v. Pery 366
Story’s Ex’ors v. Holcombe 514
Stoughton v. Lynch 529
Stout v. Jackson 264
v. Prall 269

v. Wren 85

 

INDEX TO CASES CITED.

Section

Stowe v. Thomas 514
Stoytes v. Pearson 246, 300
Strang v. Holmes 28, 30
Strange v. McCormick 2324
v. Powell 279
Strayhorn v. Webb 518
Streeter v. Horlock 104
v. Sumner 108
Streetly v. Wood 421
Strithorst v. Graeme 437
Strohm’s Appeal 528
Strong v. Bliss 251
v. Harvey 605

v. Hobbs 625

v. Manuf. Ins. Co. 379

v. N. Y. Firem. Ins. Co. 393

v. Strong 69, 78

v. Williams 524

Strout v. Berry 625
Stuart v. Lovell 418
v. Whittaker 593
Stubbs v. Lainson 592
v. Parsons 566
Studdy v. Sanders 104
Stultz v. Dickey 251, 615
v. Scheeffle 688
Sturge v. Buchanan 193
Sturges v. Bush 37, 39
v. Longworth 438

Sturt v. Mellish 447
Sturton v. Richardson 36
Styart v. Rowland 126, 127, 529
Suffern v. Townsend 615, 627
Suffield, Ld., v. Bruce 107

Suffolk Bank v. Worcester Bank 607

Sullivan v. Holker 342

Sulston v. Norton 287

Summersett v. Jarvis 642

Sumter v. Lehie 332

Surrey Canal v. Hall 660

Sutcliffe v. Brooke 69

Sutton v. Buck 378, 637

v. Clark 434

v. Hawkins 605

v. Johnstone 271

v. Moody 620

v. Sutton 681

v. Toomer 528

v. Waite 586

Swain v. Stafford 455

Swallow v. Beaumont 800
Swampscott Machine Co. v.

Partridge 251

Swan v. Littlefield 432

v. Swan 550
Swan v. Tappan
Swartwout v. Payne
Swayn v. Stephens
* Sweet v. Benning

v. James
Sweeting v. Fowler
Sweetser v. French
Sweigart v. Lowmater
Swett v. Boardman

v. Patrick
Swift v. Barnam

v. Barnes

v. Bennett

v. Stevens
Swindler v. Hilliard
Sykes v. Dunbar
Sylvester v. Crapo
Symmons »v. Blake
Symonds v. Page
Symons v. Hearson

ad

Tabart v. Tipper
Tabram v. Horn

Taft v. Montague
Tagart v. Hooper
Taggard v. Loring
Tainter v. Hemmenway
Tait v. Harris

Talbot v. Bank of Rochester

v. Clark

v. Gay

v. Hodson

v. McGee

v. Talbot
Talcott v. Commercial I

v. Marine Ins. Co.

Tallman v. Tallman
Tankersly v. Anderson
Tanner v. Bean
v. Bennett
v. Smart
Tapley v. Lebeaume
Taplin v. Florence
v. Packard
Tappan v. Kimball
Tappendon v. Randall
Tarbuck v. Bipsham
Tarleton v. McGawley
Tarling v. Baxter
Tarver v. Rankin
v. Tarver
Tasker v. Bartlett
Tassall v. Shane

INDEX TO CASES CITED.

Section
420
523 9
648
512
528
163
479
39
675
264
649
261
865
156
215, 219
453, 454

179, 199, 200

418
336
627

424
139
104
682
378
556
86, 624
164
207
186
296
141
684
401
394
74, 78
141
160
385
440
264
627
118
444
Lil.
127
231, 254
638
2914
672
296, 601

ns. Co.

 

31
t*

lxv

Section

Tate v. Humphrey 418
Tatham v. Wright 694
Tatlock v. Harris 518
Taunton v. Costan 618
Tayloe v. Sandiford 257, 258, 530
Taylor v. Beal 281
v. Cole 278, 628, 634

v. Commonwealth 592

v. Coryell 81

v. Cottress 2 302

v. Crocker 164, 166

v. Draing 674

v. Fleet 230 a

* v. Glaser 296

v. Godfrey 454

v. Hawkins 421

v. Higgins 113

v. Hooman 625

v. Horde 430

v. Jones 184, 196

v. Lendey 119

v. Lowell 401

v. McCane 204

v. Needham 305

v. Rainbow 85, 270

v. Robinson 462

v. Sayre 78

v. Shum 239

v. Smith 628

v. Snyder 180

v. Taylor 317, 683

v. Townsend 619, 658

v. Whitehead 627

v. Wilburn 688

v. Willans 454

v. Williams 454

; v. Zamira 566
Teal v. Felton 640
Teat’s case 236
Tebbetts v. Moore 65
v, Pickering 118

Teed v. Elworthy 478
Teller v. Burtis 430, 557
Tempany v. Burnand 404
Temple v. Pomroy 64, 65 a
v. Seaver 478
Templer v. McLachlan 136, 148
Templeton v. Case 561
Ten Eyck v. Waterbury 554
Tenney v. Prime 116
Thames v. Richardson 338
Thatcher v. Dinsmore 519, 520
Thayer v. Bracket 179, 605
v. Brooks 474

v. Buffum 478
Ixvi

Section
Theobald v. Stinson 440
Thetford v. Hubbard 601, 605, 608

Thomas v. Boston & Prov. R. R. 210

v. De Graffenried 452
v. Evans 602
v. Foyle 378
v. Graves 249, 251, 252
v. Hawkes 128
v. Heathorn 28
v., Marsh 98
v. Pearse. 598
v. Snyder 614
v. Von Kapff 240
v. Weeks * 492
v. Wright 331
Thomas’s case 109
Thomason v. Odum 437
Thompson »v. Bell 431
v. Bernard 423
v. Brown 446, 581, 533
v. Button 560
v. Hale 179
v. Hall 677
v. Leach 369
v. Lockwood 302
v. Manrow 291a
v. Mitchell 75
v. Mussey 456, 459
v. Phelan 533
_v. Rose 644
v. Symonds 512
v. Thompson 689
Thomson v. Lay 367
Thorndell v. Morrison 462
Thorne v. Rolff 278 f
v. Smith 518
v. White q7
- Thornton v. Illingworth 367
v. Lance 402
v. Royal Exch. Co. 401
v. Stephen 423
v. Suffolk Man. Co. 251
v. United States Ins.
Co. 393
v. Wynn 190
Thornton’s case 688 a
Thorogood v. Bryan 232 a
Thorpe v. Booth 435
v. Burgess 604
v. Burling 614
v. Combe 435
Thresher v. East London Wa-
terworks 656
Thrupp v. Fielder 367
Thunder v. Belcher 325, 829

INDEX TO CASES CITED.

4 Section
Thurman v. Wells 212
° v. Wild 30
Thurston v. Blanchard 642
v. Hancock 467

v. McKown 199

Thurtell v. Beaumont 408
Tibbatts v. Tibbatts 481
Tibbets v. Gerrish 367
Tice v. Norton 564
Ticknor v. Harris 359
Ticonic Bank v. Johnson 190
Tidmarsh v. Washington Ins. ‘
Co. 398, 401
Tifft v. Culver 253
Tilden v. Metcalf 271
Tilk v. Parsons 420
Tilley v. Damon 302
Tillier v. Whitehead 481
Tillotson v. Cheetham 253
v. Rose 435

v. Warner 454

Tilton v. Alcott 31
Timmings v. Timmings 51, 54
Timothy v. Simpson 95
Tingley v. Cutler 259
Tinkler v. Walpole 484
Tippets v. Heane 444
Tisdale v. Essex 243
Tobey v. Barber 521
v. Webster 616

Tod v. Winchelsea 678
Todd v. Gallagher 136
v. Hawkins 421

v. Rome 660
Tolland v. Tichenor 26
Tomlinson v. Blacksmith ll e
v. Collett 483

v. Tomlinson 684

Tompkins v. Tompkins 672
Toogood v. Spyring 421
Toosey v. Williams 193
Topham v. Braddick 435
Toussaint v. Hartop 79
v. Martinnant 1038, 114

Tower v. Durell 190
Towers v. Barry 103
Towne v. Jaquith 74
v. Wiley 368
Townes v. Mead 437
Town’s Adm’r v. Hendee 65
Townsend v. Deacon 437
v. Ives 694

v. Kerns 618

v. Phillips 594

Townsley v. Sumrall 183

 
INDEX TO CASES CITED. lxvii

Towson v. Havre De Grace
Bank

Tracy v. Herrick

v. Strong

v. Swartwout

v. Wikoff
Treadwell v. Bladen
Treanor v. Donohoe
Treasurers v. McDowell
Treat v. Barber

v. McMahon
Trelawney v. Coleman

Section

601
78
607
253
530
508
255
141
253
lla
56

Trenton, &c. Insurance Co. v.

Johnson
Trevelyan v. Trevelyan
Trevilian v. Pine
Trevivan +. Lawrence
Triggs v. Newnham
Trimble v. Thorn
v. Trimble
Trimmer v. Jackson
. Trimyer v. Pollard
Tripp v. Thomas
Trott v. Wood
Troup v. Smith
Trowbridge v. Chapin
v. Scudder
Trower v. Chadwick
Troy v. Ch. Railroad Co.

409
681
567
281
178
196
462
675
440
456
251
448
212
481
462
474

Troy Turnp. Co. v. McChesney 63

True v. Collins
v. Ranny
Trueman v. Fenton
v. Hurst
Truitt v. Revill
Trull v. Eastman
Truman’s case

188, 525
461, 464
115
128, 446
597
240
461

Trumbull v. Gibbons 688 a, 689

Truscott v. King
Tryon v. Carter
Tubbs v. Richardson
v. Tukey

Tuberville v. Savage

_ -v. Whitehouse
Tucker v. Barrow

v. Cracklin
. Haughton
. Ives
. Moreland
. Smith
. Wilamonicz
Tuckerman v. Sleeper
Tufts v. Adams
. v. Charlestown
Tugwell v. Heyman

2 8 3

es

533
290

646

615

82, 83
365

126
209, 218
440

445

369

200

207

518
242, 244
657

108

 

Section

Tullay v. Reed 98

Tullidge v. Wade 89, 253, 579

Tullock v. Dunn 352

Tupper v. Cadwell 365

Turner v. Ambler 455

v. Child 343

v. Eyles 239

v. Meymott 618

v. Myers’ 464

v. Protect. Ins. Co. 403

v. Turner 45, 449, 453

v. Wilson 219, 377

v. Winter 490

v. Yates 251

Turney v. Paw 279

v. Wilson 209.

Turnipseed v. Hawkins 694

Turrill v. Dolloway 425

Turton v. Turton 48, 53, 54

Turvil v. Tipper 593

Tuson v. Evans 411

Tuthill v. Davis 207

Tuttle v. Brown 262

v. Cooper 484

v. Mayo 104

Tweed v. Libbey 18, 20

Twemlow v. Oswin 386

Twombly v. Henley 241

v. Hunnewell 588

Twitchell v. Shaw 597, 629

Tybout v. Thompson 123

Tye v. Gwinne 136

Tyler v. Binney 166

v. Duke of Leeds 593

v. Freeman 561

v. Smith 619

v, Wilkinson 539

Tyndal v. Hutchinson 280

Tyson v. Shueey 618
U.

Uhde v. Walters 377

Ulmer v. Leland 454, 457

Ulster Co. Bank v. McFarlan 161

Umphelby v. McLean 434

Underhill y. Agawam, &c. Ins. Co. 406

Underwood v. Carney 659 a

v. Hewson 85, 270

v. Nichols 518

v. Parkes 274, 425

Union Bank v. Knapp 445

v. Ridgely 297, 300
xviii INDEX TO CASES CITED.

Section

Union Bank of Georgetown v.

Geary 141
Union Bank of Georgetown v.

Maceruder 190
Union Bank of Weymouth v.

Willis 126, 176
Union Bank of Weymouth & B.

v. Willis 163

United States v. Appleton 659 a

v. Bradbury 529
v. Coffin 296
v. Drew 374
v. Hoar 348, 350
v. Kirkpatrick 538
v. Lyman 118
v. M’Daniel 251
v. M’Glue 378
v. Ortega . 84
.v. Shultz 373
v. Wardwell 533
v. Worrall 286

United States Bank v. Binney 481
v. Wardwell 529

Unwin v. Heath 506
Updike v. Henry 561
Upham v. Lefavour 531, 582, 533
Upston v. Slark © 211
Upton v. Curtis 570
v. Suffolk Co. Mills 64a
Usticke v. Bawden "682, 683
Uther v. Rich 172, 639
Utterson v. Vernon 337
Utterton v. Utterton 681
V.

Vail v. Rice 252
Vallejo v. Wheeler 390
Valpey v. Manley 121
Van Allen v. Rogers 333
Van Buskirk v. Claw 464
Vance v. Foster 407
v. Vance 45

Van Cortlandt v. Underhill 73
‘Vander Donckt v. Thellusson « 180
Vanderplank v. Miller 478
Vandewall v. Tyrrell 114
Van Dorens v. Everett 367
Van Epps v. Harrison 136
v. Van Epps 41

Van Horn v. Freeman 226, 576
Van Horne v. Crain 240
Van Ostrand v. Reed 118
Van Rensselaer v. Platner 260

 

Section
Van Rensselaer v. Roberts 531
Vansandau v. Browne 142
Van Santvoord v. St. John 210
Van Schaack v. Stafford 204
Vansteenburg v. Hoffman 520
Vansyckle v. Richardson 358
Van Valkingburg v. Rouk 800
v. Watson 108
Van Vechten v. Hopkins 417
Varney v. Grows 437
Varnum v. Bellamy 141
Varrill v. Heald 270
Vasse v. Smith 368
Vassor v. Camp ° 481
Vaughan v. Blanchard 280
v. Thompson 279
Veazy v. Harmony 608
Vedder v. Vedder 28a
Venefra v. Johnson 454
Venning v. Shuttleworth 204
Ventris v. Shaw 440
Vere v. Cawdor 630
v. Lewis 164, 169
Vernon v. Curtis 344, 345
v. Kays 271
v. Smith 240
Verplank v. Sterry 297
Verrall v. Robinson 645
Verry v. Watkins 577
Vessey v. Pike 425
Vibbard v. Johnson 186
Vickars v. Wilcocks 256
Victors v. Davis 107
Villepigue v. Shular 573
Vincent v. Cornell 544
v. Groome 142
Vines v. Terrell 420
Visger v. Prescott 388.
Vivyan v. Arthur 240
Von Hemert v. Porter 437
Vooght v. Winch 666
Vose v. Eagle Life, &c. Ins. Co. 409
v. Handy 330
Voss v. Robinson 394
Vowles v. Miller 617
Voyce v. Voyce 626
Vynior’s case 79
W.
Waddell v. Cook 647
Wade v. Haycock 261
v. Howard 880

v. Merwin 236
INDEX TO CASES CITED.

Section Section

Wade v. Wilson - 112 | Waltman v. Allison 566
Wade's case 602, 604 | Walton v. Kersop 562
Wadhurst v. Damme 630 v. Mascall 186 a
Wadsworth v. Allcott 251 v. Potter 501 a
v. Mannin 481 v. Robinson 441

v. Marshal 142 v. Walton 686, 687

v. Ruggles 690 | Walwyn v. St. Quinton 165, 202

Wafer v. Mocato 259 | Wankford v. Wankford 339
Wailing v. Toll 134, 366 | Wanstall v. Pooley 232 a
Wainman v. Kynman 444 | Warburton v. Storer 79
Wait v. Maxwell 241,555 | Ward v. Dulaney 461
Waite v. Gilbert 261 v. Evans 66
Waithman v. Weaver 424 v. Fuller 554, 555
Wakefield v. Newbon 121 v. Harrison 817
Wakeman v. Robinson 85, 94, 270 v. Lee 139
Wakley v. Johnson 275 v. Lewis 297
Waland v. Elkins 214 v. Macauley 616
Walbridge v. Shaw 560 v. Pearson lld
Walcot v. Pomeroy 614 v. Smith 421
Walden v. Davison 580 v. Weeks 414
vu. New York Ins. Co. 397 | Warden, In re 676
Waldron v. Chase 107 | Warder v. Tucker 190
v. Coombe 385 | Ware v. Gay 221, 222

v. McCarty 243 v. Ware 690

Wales v. Jones 26 v. Weathnall 264
Walford v. Anthony 625 | Warfield v. Walter 635 a
Walker v. Davis 368, 648 | Waring v. Waring 3714
v. Goodrich 140, 435 | Warmoll v. Young 593

v. Ham 111, 112; Warne v. Chadwell 418

v. Holiday 36 | Warner v. Beach 684

v. Hunter 672, 688 v. Thurlo 263

v. Maitland 387 v. Wheeler 124

v. Melcher 74 | Warr », Jolly 421

v. Scott 141 | Warrall v. Clare 633, 634

v. Seaborne 80, 480 | Warren v. Austen 258

- v. Smith 253 v. Child 557

v. Walker 190 v. Cochran 614

v. Wright 528 v. Leland 561

Wall v. East River Ins. Co. 251 v. Lynch 296
v. Hinds 656 v. Mains 601
Wallace v. Hardacre 88 v. Merry 207
v. Kelsall 80, 480 v. Postlethwaite 675

v. Kin 648 ve. Warren 183, 416

v. McConnell 174, 180 a | Warren Bank v. Suffolk Bank 251

Walley v. Walley 448 | Warwick v. Foulkes 272
Wallis v. Alpine 455 | Warwicke v. Nookes 525
vu. Mease , 418 | Washington Bank v. Brown 556
Walsh v. Bishop 277 | Waterman v. Barratt 302
Walter v. Green 55 v. Burbank 440
v. Haynes 525 v, Robinson 561°

v. Sample 458 | Waters v. Lilley 625

v. Selfe 467, 478 v. Merchants’ Ins. Co. 405
Walters v. Brown 188 v. Monarch, &c. Ins. Co. 405
‘ vy, Mace 414 v. Paynter 163

v. Pfeil 478 v. Thanet 44C

 

lxix
Ixx INDEX TO CASES CITED.

Section Section
Waters v. Tomkins 536 | Webber v. Webber 354
v. Towers 261 | Webster v. Drinkwater 108
Watertown v. Cowen 240 v. Lee 74, 199
Watkins v. Baird 121, 302 | Weed v. Saratogca & S. R. R. 210, a
v. Hill 519, 520 | Weeden v. Tunbrell

v. Lee 452 | Weeks v. Gibbs 845, a7
v. Morgan 11 e | Weems v. Farmer’s Bank 177
v. Vince 65 | Weidner v. Schweigart 527
v. Woolney 644 | Weigall v. Waters 245 a
Watkinson v. Inglesby 28 | Weigel v. Weigel 676
Watson v. Bayless 579 | Weinberger v. “Shelly 452
v. Christie 93, 97, 274 | Weir v. Aberdeen 400
v. Clark 400, 401 | Welch v. Seaborn 112
v. King 338, 384 | Welcome v. Upton 544
v. Moore 424 | Weld v. Bartlett 599
v. North Amer. Ins. Co. 401 v. Chadbourne 585
v. Pears 488 vy. Oliver 646
v. Poulson 230 a | Weleker v. Le Pelletier 21, 26
v. Reynolds 428 | Welford v. Diddel 447

v. The Ambergate, &c. Wellcome v. People’s, &c. Ins.
Railway Co. 210, 256 Co. 406
v. Todd 580 | Weller v. Baker 227
v. Turner 107, 114 | Wellington v. Wentworth 644
v. Whitmore 454 | Wells v. Brigham 118
Watt v. Greenlee 457 v. Cooke 73
v. Hoch 5382 v. Fish 448
Watts v. Baker 607 v. Head 272
v. Frazier 275 v. Hopwood 391
v. Public Adm’r 674 v. Ody 226,472
v. Welman 242 v. Prince 554
v. Willing 523 v. Some 36
Waugh v. Bussell 13 v. William 19
Way v. Bassett 179 | Welsted v. Levy 200
v. Richardson 163 | Wendover v. Hodgeboom 378
v. Sperry 441 | Wennall v. Adney 114
Wayman v. Bend 163 | Wentworth v. Blanchard 614
Wayne v. Sands 302 »y. Bullen 449
Weatherford v. Weatherford 463 v. Wentworth 30
Weaver v. Bachert 256 | Wesson v. Newton 71
v. Bush 98 | West v. Chamberlain 524
v. Lloyd 423 v. Hughes 333
v. Ward 85, 270 v. Rice 435

Webb v. Alexander 243 , Westfall v. Hudson River, &c.
v. Fox 637 Ins. Co. 408
v. Herne 584 | Westmeth v. Westmeth 54
v. Hill 13 | Weston v. Alden 467
v. Paternoster 475 v. Ames 435
v. Powers 514 v. Barker 109
v. Thompson 384 v. Carter 562
v. Turner 624 v. Downes 103
Webb’s case 210 v. Foster 29
Webber v. Liversuch 96 v. Reading 557
v. Nicholas 456 | Wetherstone v. Hawkins 419
v. Richards 625 | Wetzel v. Bussard 440, 4438
v. Tivill 447 | Whaley v. Pepper 451, 454

 
INDEX TO CASES CITED.

Section

Wharton v. Mackenzie 365

Wheatfield v. Brush Valley 1238
Wheaton v. East 241
v. Hibbard 121

v. Peters 510, 511

v. Wilmarth * 189

Wheeler v. Alderson 675

v. East London Water-

works 656

v. Field, 180

v. Hatch 241

v. Horne 37

v. House 531

v. Nesbit 453

v. Nevins 61

v. Rice 478

v. Rowell 618 a

v. Train 561, 640

v. Wheeler 646
Wheelock v. Doolittle 441
v. Pierce 847

v. Wheelwright 642
Wheelwright v. Depeyster 649
v. Freeman 556

v. Wheelwright 297

Whelen v. Watmaugh 37, 38
Whelpdale’s case 300
Whipple v. Kent 597
v. Walpole 253
Whispell v. Whispell 53
Whitaker v. Edmonds 172
v. Sumner 316
Whitbeck v. Cook lla
- v. Taylor 567

v. Van Ness 523

White v. Atkins 136 a
v. Bass . 115

v. Bailey a 437, 439

v. British Museum 675

v. Crawford 659 a, 665

v. Demary 644

v. Dingley 259
v. Edgman 64-

v. Franklin Bank 111, 121

v. Hague 232 a

v. Kibling 207

v. Livingston 614

v. Mann 278 f, 348

z. Morton 646

v. Mosely 272

v. Oliver 104

v. Osborn 647

v. Pickering 317

v. Sayward 417

v. Whitman 26

 

lxxi
Section
White v. Whitney 244
v. Wilson 689, 690

v. Winnissimmet Ferry
0. 220, 473
Whitehall v. Squire 649
Whitehead v. avail 126, 448
». Lord 142
v. Taylor 567
v. Tucket 65
v. Varnum 599
Whitehouse v. Atkinson 649
Whiteman v. Slack 236
Whitesell v. Crane 216
Whiteside v. Jackson 305
v. Russell 219
Whiteside’s Appeal 278 f
Whitfield v. Savage 195
Whiting v. Smith 414
: v. Sullivan 108
Whitney v. Bigelow 441, 444
~ ». Clarendon 268 b
v. Dutch 367
v. Ferris 484
v. Hitchcock 253
v. Lewis 136
v. Peckham 457
v. Smith — 414
; v. Sterling 483
Whittemore v. Black 649
v. Cutter 2538, 254
v. Wilks 473
Whittier v. Graffham 195
Whitwell v. Bennett 118
v. Johnson 187, 194
v. Kennedy 265
v. Varnum 599
v. Wells 561
Whitwill ». Scheer lld
Whorewood v. Shaw 109
Wickham v. Freeman 614
Wicks v. Fentham 452
Widdifield v. Widdifield 483
Widger v. Browning 324
Wigan v. Rowland 677
Wiggin v. Amory 390
Wigglesworth v. Dallison 251
v. Steers 300
Wightman v. Wightman 464
Wigmore v. Jay 232 6b
Wihen v. Law 363
Wilkoff’s Appeal 674
Wilbaume v. Gorges 291
Wilbour v. Turner 163, 199
Wilbraham v. Snow 614, 637

Wilbur v. Bowditch, &c. Ins. Co. 406
xxii

Section

Wilbur v. Sproat 117, 121
Wilby v. Henman 431
Wilcox v. Howland 302
_v. Hunt 672

v. McNutt 118

v. Plummer 146, 268

Wild v. Pickford 218
Wilde v. Clarkson 263
v. Fisher 112

v. Waters 644
Wilder v. Bailey 587
.v. Holden 597
Wilderman v. Sandusky 624
Wilkins v. Aiken 514
v. Gilmore 272

v. Jadis 178
Wilkinson v. Byers 28
v. Haygarth 615

v. Howell 452

uv. dadis 196

v. Johnson 122

v. King 638, 640

v. Lutwidge - 164

Willard v. Twitchell 241
Willbeam v. Ashton 258
Williams v. Annapolis 305
v. Bosanquet 239

v. Bransom 219

v. Bridges 584

v. Burrell 240

v. Cheney 162

v. Cranston 222

v. Crary 524

v. Cummington 662

v. Currie 253

v. Everett 119

v. Grant 219, 377

v. Gridley 440

v. Griffith 535

v. Holland 220, 226

v. Houghtaling 529

v. Ingell 303

v. Innes 347

v. Jones 98

v. Lee lla

v. Matthews 197

v. Mitchell 68

v. Moor 367

v. Morris 627

v. Mostyn 584, 599

v. Paschal 78

v. Putnam 183

v. Reed 145

v. Roberts 431

v. Sills 234

 

INDEX TO CASES CITED.

Section

Williams v. Weatherbee 244
v. Welch 562

v. Williams 41, 44, 45, 49

v. Woodward 239, 241

Willis v. Barratt 160
v. Bernard 55

v. Dyson 485

v. Newham 440, 444

v. Watson 686
Williston v. Smith 424
Willoughby v. Horridge 220
Wills, In re 147
Wilmett v. Harmer 426
Wilmot v. Smith 606
Wilsford v. Wood 478
Wilson v. Appleton 437
v. Beddard 674

v. Coffin 144

v. Coupland 112

v. Edmonds 68 a

v. Forbes 241, 264

v. Force 523

v. Freeman 218

v. Fuller 230 a

v. Hodges 110

v. Hurst 533

v. Jennings 114

v. Kennedy 620

v. King lla

v. Macreth 615

v. Martin 216

v. Mitchell 301

v. Norman 587

v. Ray 121

v. Reed 646, 647

v. Robinson 421

v. Shearer 641

v. Stolly 491

v. Tucker 149

v. Tummon 66,68

v. Vysar 520

v. Wadleigh 141

v. Wallace lla

v. Wilson 358

v. Woolfryes 246

Wilt v. Ogden 135
v. Vickers 268 a
Wiltoy ». Montfort 240
Wilton v. Girdlestone 644
. v. Webster 51, 55, 57
Wiltshire v. Sidford 617
Winans v. Denmead 485
Winchell v. Bowman 441,444
Winchelsea v. Wauchope 678

Windham Bank v. Norton 188
INDEX TO CASES CITED.

Section

Wing v. Harvey 409
v. Mill 107, 114
Wingfield v. Stratford 648

Winship v. United States Bank 481

Winslow v. Leonard 561
v. Merrill lla
Winsmore v. Greenbank 55
Winsor v. Pratt 674, 681
Winter v. Brockwell 475
v. Charter 472

v. Henn 51

v. Trimmer 257

v. Wroot 56
Winterbottom v. Morehouse 644

v. Wright 232 a, 232 b
Winthrop v. Union Ins. Co. 251, 252

Wintringham v. Lafoy 621

Wiseman v. Chiappella 180

v. Lyman 523

Wissler v. Hershey 658

Witchcott v. Nine 243

Witham v. Gowen 457
Wittersheim v. Countess of Car-

lisle 435

Witty v. Hightower 244

Woert v. Jenkins 258, 272

Wolcott v. Hall 275

v. Knight B56}

Wolfe v. Dowell 807

Wolmer v. Latimer 424

Wolstenholm v. Davies 65

Wood v. Auburn & Rochester

R. R. Co. 61

v. Buckley 449

v. Day 305

v. Edwards 103

v. Hickok 252

v. Hitchcock 605

v. Hopkins 141

v. Manley 627

v. Pope 245 a

v. Veal 545, 663

Woodbridge v. Brigham 179

Woodbury »v. Frink 213

v. Northy 78

Woodcock v. Houldsworth 187,193

v. Parker 492

Woodhull v. Holmes 206

Woodman v. Coolbroth 297

v. Gist 580, 591

v. Hubbard 642

v. Smith 556

Woods v. Houghton 431,°432

v. Russell 638

Woodward v. Booth 209

VOL. II. 9g

 

lxxiii

Section

Woodward v. Giles 259

v. Hopkins 597

v. Larkin 378

v. Newhall 24, 133

v. Thacher * 262

v. Walton 88, 225, 273

v. Ware 431

Woodworth v. Sherman 492

Woodyer v. Hadden 660

Wookey ». Pole 639

Wooldridge v. Boydell 382

Woolley v. Carter 635 a

v. Clark 839, 641

Worcester v. Eaton 111, 121
Worcester Bank v. Hartford,

&c. Ins. Co. 406

Worcester County Bank v. D. &

M. Bank 172
Wordsworth v. Harley 434
Wormouth v. Cramer lid
Worsley v. Wood 406
Worthington v. Barlow * 347
Wren v. Heslop 454
Wright v. Barnard 401

v. Boston 121

v. Butler 135

v. Caldwell 212

v. Castle 139

v. Hicks 150

v, Laing 533

v. Lainson 593

v. Ld. Verney 115

v. Morris 104

v. Netherwood 684

v. Ramscott 630

v. Rattray 659

v. Reed 601

v. Russell 478

v. Tukey 662

v. Woodgate 421

v. Wright 675

Wurt v. Lee 518:
Wyatt v. Gore 424
v. Harrison 467

Wyer v. Dorchester & M. Bank 172

Wyeth v. Stone 489, 491, 507
Wyman v. American Powder Co, 261
v. Ballard 242

v. Hal. & Augusta Bank 68.

© v. Hook 108
Wynch v. E. India Co. 435
Wyndham v. Wycombe 52

Wynn v. Allard 253
v. Hevingham 681
Wynne v. Anderson 624
lxxiv

Y.

Yale v. Saunders
Yarnold v. Wallis
Yate-v. Willan
Yates v. Freckleton

v. Thompson
Yea v. Fouraker

v. Lethridge

Yeatman v. Erwin
Yeomans v. Bradshaw
Yerby v. Yerby
York v. Blott

v. Pease
Youl v. Harbottle

INDEX TO CASES CITED.

Section ‘
Young v. Kenyon
v. Marshall
649° v. Mason
686 v. Miller
209 v. Patterson
518 v. Preston
272 v. Tustin
441 v. Weston

586 | Younges v. Lee

187 | Yrisarri v. Clement
338
684

161, 204 Z.

418, 421
642

Young v. Adams == = 112, 124, 522 | Zachary v. Pace

v. Black
v. Bryan
v. Covell
v. Drew

v. Gregor
v. Grote y
v. Hichens
v. Hosmer
v. Hunter

135 | Zeig v. Ort

183 | Zeigler v. Gray
271 v. Zeigler
817 | Zeniobig v. Axtell
450 | Zent v. Hart

122 | Zerrano v. Wilson

620 | Zimmerman v. Zimmerman

 

586, 599
483 ' Zouch v. Willingale

Section
431
120
642

73

164

103

268 a
435

189

412, 417

464, 645
414

207

78

11 d, 414
444

520

688,

688 a
321, 327
A TREATISE

ON THE

LAW OF EVIDENCE.
PART IV.

°

OF THE EVIDENCE REQUISITE

IN CERTAIN
PARTICULAR ACTIONS AND ISSUES

AT

COMMON LAW.

VOL. II. a <
A

TREATISE

ON THE

LAW OF EVIDENCE,

PART IV.

-OF THE EVIDENCE REQUISITE IN CERTAIN PARTICULAR
ACTIONS AND ISSUES AT COMMON LAW.

»

PRELIMINARY OBSERVATIONS.

§ 1. Havine, in the preceding volume, treated, First, Of
the Nature and Principles of Evidence, — Secondly, Of the
Object of Evidence, and the Rules which govern in the Pro-
duction of Testimony, — and, Thirdly, Of the Means of Proof,
or the Instruments by which Facts are established ; it is now
proposed to consider, Fourthly, The Evidence requisite in cer-
tain Particular Actions and Issues, at Common Law, with
reference both to the nature of the suit or of the issue, and
to the legal or official character and relations of the parties.

§ 2. We have already seen, that the evidence must corre-
spond with the allegations, and be confined to the point in
issue ;} that the substance of the issue, and that only, must
be proved ;” that the burden of proof generally lies on the
party holding the affirmative of the issue ; ° and that the best
evidence, of which the nature of the case is susceptible, must
be adduced.* These doctrines, therefore, will not be again
discussed in this place.

 

1 Vol. 1, Pt. 2, ch. 1. 2 Vol. 1, Pt. 2, ch. 2.
3 Vol. 1, Pt. 2, ch. 3. 4 Vol. 1, Pt. 2, ch. 4.
4 LAW OF EVIDENCE. [PART Iv.

§ 3. The first thing which will receive attention, in the
preparation of a cause for trial, will naturally be the issue,
or proposition to be maintained or controverted. In the early
age of the Common Law, the pleadings were altercations in
open Court, in presence of the Judges; whose province it
was to superintend or moderate the oral contention thus con-
ducted before them. In doing this, their general aim was,
to compel the pleaders so to manage their alternate allega-
tions, as at length to arrive at some specific point or matter,
affirmed on one side, and denied on the other. If this point
was matter of fact, the parties then, by mutual agreement,
referred it to one of the various methods of trial then in use,
or to such trial as the Court should think proper. They were
then said to be at issue (ad exitum, that is, at the end of
their pleading) ; and the question thus raised for decision,
was called the issue In this course of proceeding, every
allegation, passed over without denial, was considered as
admitted by the opposite party, and thus the controversy
finally turned upon the proposition, and that alone, which
was involved in the issue. This method was found so highly
beneficial, that it was retained after the pleadings were con-
ducted in writing, and it still constitutes one of the cardinal
doctrines of the law of pleading.

§ 4. It will be observed, that, by the Common Law, the
issue is formed by the parties themselves, through their attor-
neys; the Court having nothing to do with the progress of
the altercation, except to see that it is conducted in the forms
of law; and it always consists of a single proposition, pre-
cisely and distinctly stated. The advantages of this mode
over all others in use, especially where the trial is by jury,
are strikingly apparent. The opposite to this method is that
which was pursued in the Roman tribunals, and which still
constitutes a principal feature in the proceedings in the
Courts of Continental Europe; by which the complaint of
the plaintiff may be set forth at large, with its cireumstances

 

1 Stephen on Pleading, pp. 29, 30.
PART Iv.] PRELIMINARY OBSERVATIONS. 5

and in all its relations, even to diffuseness, in his bill or libel,
and the answer and defence of the defendant may be made
with equal variety and minuteness of detail. Proceedings
in this form are utterly unfit for trial by a Jury; and accord-
ingly, when material facts are to be settled in Chancery, in
England, the Chancellor ordinarily directs proper issues to
be framed and sent for trial to the Courts of Common Law.
In the United States, the same course is pursued, wherever
the Equity and Common-Law jurisdictions are vested in
separate tribunals. But where the Courts of Common Law
are also clothed with Chancery powers, if important facts
are asserted and denied, which are proper to be tried by a
Jury, the Court, in its discretion, will direct the making up
and trial of proper issues, at its own bar. In the Courts of
the States of Continental Europe, where the forms of pro-
cedure are derived from the Roman Law, the necessity has
been universally felt, of adopting some method of extracting,
from the multifarious counter-allegations of the parties, the
material points in controversy, the decision of which will
finally terminate the suit; and various modes have been pur-
sued, to attain this necessary object. In the Courts of Scot-
land, where the course of procedure is still by libel and an-
swer, the practice, since the recent introduction of trials by
Jury, is for the counsel first to prepare and propose the issues
to be tried, and if these are not agreed to, (or, which is more
usual, are omitted to be prepared,) the Clerks frame the
issues, which are sent to the Lord Ordinary for his approval.
In all these methods, the point for decision is publicly ad-
justed by a retrospective selection from the pleadings ; but in
the more simple and certain method of the Common Law,
the altercations of the parties, being conducted by the estab-
lished rules of good pleading, will, by the mere operation of
these rules, finally and unerringly evolve the true point in
dispute, in the form of a single proposition.

§ 5. Of the issues, thus raised, some are termed general

 

1 Charles River Bridge v. Warren Bridge, 7 Pick. 344.
1*
6 LAW OF EVIDENCE. [PART Iv.

issues ; others are special. The general issue is so called,
because it is a general and comprehensive denial of the whole
declaration, or of the principal part of it. The latter kind of
issue usually arises in some later stage of the pleadings, and
is so called by way of distinction from the former. The gen-
eral issue, as will be more distinctly seen in its proper place,
puts in controversy the material part of the declaration, and
obliges the plaintiff to prove it in each particular. Thus
upon the plea of not guilty, in trespass quare clausum fregit,
the plaintiff must prove his possession by right as against the
defendant, the unlawful entry of the defendant, and the dam-
ages done by him, if more than nominal damages are claimed.
But if the defendant specially pleads, that the plaintiff gave
him a license to enter, then no evidence of the plaintiffs
title or possession, or of the defendant’s entry, need be ad-
duced, the fact of the license being alone in controversy.

§ 6. The form of the general issue in assumpsit is, “that
the defendant did not promise (or undertake) in manner and
form,” &c. This would seem to put in issue only the fact
of his having made the promise alleged ; and so, upon true
principle, it appears to have been originally regarded. But
for a long time, in England, and still, in the American
Courts, a much wider effect has been given to it in practice ;
the defendant being permitted, under this’ issue, to give in
evidence any matter, showing that the plaintiff, at the time
of the commencement of the suit, had no cause of action.
The same latitude has been allowed, under the general issue
of not guilty, in actions of trespass on the case; by permit-
ting the defendant not only to contest the truth of the dec-
laration, but, in most cases, to prove any matter of defence,
tending to show that the plaintiff has no right of action, even
though the matter be in confession and avoidance, such, for
example, as a release, or a satisfaction given?

§ 7. It is obvious, that so very general a mode of pleading

 

1 Stephen on Pleading, pp. 179, 180. 2 Thid. pp. 182, 183.
PART Iv. ] PRELIMINARY OBSERVATIONS. 7

and practice, is contrary to one of the great principles of the
law of remedy, which is, that all pleadings should be certain,
that is, should be distinct and particular ; in order that the
party may have a full knowledge of what he is to answer,
and to meet in proof at the trial, as well as that the Jury
may know what they are to try, and that the Courts may
know not only what judgment to render, but whether the
matter in controversy has been precisely adjudicated upon in
a previous action. To the parties themselves, this distinct-
ness of information is essential, on principles of common
justice. These considerations led to the passage of an act,
in England, under which the Courts have corrected the abuse
of the general issue, by restricting its meaning and applica-
tion to its original design and effect.?

§ 8. Thus, in all actions of assumpsit, except on bills of
exchange and promissory notes, the general issue, by the
English rules, now operates only as a denial in fact of the
express contract or promise alleged, or of the matters of fact,
from which the contract or promise alleged may be implied
by law. In actions on bills of exchange and promissory
notes the plea of non assumpsit is no longer admissible, but
a plea in denial must traverse some particular matter of fact.
All matters in confession and avoidance, whether going to
the original malaing of the contract, or to its subsequent dis-
charge, must now be specially pleaded. The plea of non est
factum, in debt or covenant, is restricted in its operation, to
the mere denial of the execution of the deed, in point of
fact ; all other defences, whether showing the deed absolutely
void, or. only voidable, being required to be specially pleaded.
The plea of non detinet, also, now puts in issue only the
detention of the goods, and not the plaintiff’s property
therein. In actions on the case, the plea of not guilty is
now restricted in its effect to a mere denial of the breach of
duty, or wrongful act, alleged to have been committed by the
defendant, and not of the facts stated in the inducement;

 

13 &4W.4,¢. 42.
2 See Regule Generales, Hil. T. 1834; 10 Bing. 453-475.
8 LAW OF EVIDENCE. [PART IV.

in actions of ‘trespass guare clausum fregit, the same plea
operates only as a denial that the defendant committed the
act alleged, in the place mentioned, and not as a denial of
the plaintifi’s possession or title ; and in actions of trespass
de bonis asportatis, this plea operates only as a denial of the
fact of taking or damaging the goods mentioned, but not of
the plaintiff's property therein.

§ 9. While the learned Judges in England have thus la-
bored to-restore this part of the system of remedial justice to
more perfect consistency, by limiting the general issue to its
original meaning, thus securing greater fairness in the trial,
by preventing the possibility of misapprehension or surprise,
the course of opinion and practice in the United States seems
to have tended in the opposite direction. The general issue
is here still permitted to include all the matters of defence,
which it embraced in England prior to the adoption of the
New Rules; and in several of the States, the defendant is,
by statute, allowed in all cases to plead the general -issue,
and under it to give in evidence any special matter pleadable
in bar, of which he has given notice by a brief statement,
filed at the same time with the plea, or within the time
specified in the rules of the respective Courts.! In some

 

1 See New York Rev. Stat. Vol. 2, p. 352, § 10; Adaine Rev. Stat. ch.
115,§ 18; LL. Ohio, ch. 822, § 48 (Chase’s ed.); LL. Tennessee, 1811,
ch. 114. In Massachusetts, this privilege is given only in certain specified
cases. See Mass. Rev. Stat. ch. 21,§ 49; ch. 58,§ 17; ch. 85,§11; ch. 100,
§$ 26, 27; ch. 112,§ 3; but in nearly all the States it is accorded to Jus-
tices of the Peace, and other public officers and their agents, in actions for
anything done by them in the course of their official duties ; the statutes
being similar to 21 Jac. 1, v. 52, and the other English statutes on this sub-
ject. [By the Practice Act of 1852, (Acts 1852, ch. 312,) the general issue
in personal actions is abolished in Massachusetts, and the defendant is re-
quired to file an answer to the plaintiff’s declaration.] In Afaine, the plain-
tiff may file a counter brief statement of any matter on which he intends
to rely, in avoidance of the matter contained in the brief statement of the
defendant; so that the substance of the Common Law of pleading is not
totally abolished, though exceptions of form, by special demurrer, can no
longer be taken. Of the wisdom of such wide departures from the dis-
tinctness and precision of allegation required from both parties by the
Common Law, grave doubts are entertained by many of the profession;
‘ PART Iv. PRELIMINARY OBSERVATIONS. 9

States, however, the course of remiedy is by petition and
answer, somewhat similar to proceedings in Equity.

§ 10. Amid such diversities in the forms of proceeding, it
is obviously almost impossible to adjust a work like this to
the particular rules of local practice, without at the same
time confining iis usefulness to a very small portion of the
country. Yet as, in every controversy, under whatever forms
it may be conducted, the parties may come at last to some
material and distinct proposition, affirmed on one side and
denied on the other; and as the declarations and pleas, and
the rules of good pleading, adopted in the Courts of Com-
mon Law, exhibit the most precise and logical method of
allegation, the principles of which are acknowledged and
observed in all our tribunals, it may not be impracticable, by
adhering to these principles, to lay down in the following
pages some rules, which will be found generally applicable,
under whatever modifications of the Common Law of rem-
edy justice may be administered.

§ 11. A further preliminary observation may here be made,
applicable to every action founded on a written document,
namely, that the first step in the evidence on the side of the
plaintiff, is the production of the document itself. If there
is any variance between the document and the description
in the declaration, it will, as we have previously seen} be

 

especially where the rules do not require the plaintiff to file any notice of
the reply, intended to be made to the matter set up in defence. Nor is it
readily perceived how the Courts can administer equal and certain justice to'
the parties, without adopting, in the shape of rules of practice, or in some
other form, the principle of the Common Law, which requires that each
party be seasonably and distinctly informed, by the record, of the proposition
intended to be maintained by his adversary at the trial, that he may come
prepared to meet it. But these are considerations more properly belonging
to another place.

1 Vol. 1, §§ 56, 58, 61, 68, 65, 66, 69, 70. There is a material distinction
between mere allegations, and matter of description. In mere matters of
allegation, a variance in proof, as to time, number, or quantity, does not
affect the plaintiff’s right of recovery ; but in matters of description, a vari-
ance in time is fatal. Gates v. Bowker, 18 Verm. R. 23.
10 LAW OF EVIDENCE. [PART Iv. |

rejected. If the variance is occasioned by a mere mistake in
setting out a written instrument, the record may generally be
amended, by leave of the Court, under the statutes of amend-
ment, of the United States, and of the several States ; and
in England, under Lord Tenterden’s act.1_ Thus, where a
written contract by letter was set forth as a promise to pay
for certain goods, and on production of the letter,,the con-
tract appeared to be an undertaking to guarantee to the plain-
tiff the amount supplied, an amendment was permitted2
But if the variance is occasioned by the allegation of a mat-
ter totally different from that offered in evidence, it will not
be amended. Thus, where, in a declaration for a malicious
arrest, the averment was that the plaintiff in that action “ did
not prosecute his said suit, but therein made default,” and
the proof by the record was, that he obtained a rule to dis-
continue, the plaintiff was not permitted to amend, the mat-
ter being regarded as totally different?

§ 11a. The general practice in these cases may be illus-
trated by a few examples. And first, in regard to amend-
ments of the process in the names of parties. The rule of
the Common Law, that no new parties can be added by
amendment,‘ is believed to be universally adopted in the
United States ; though in some few States the Common Law
in this respect has been changed by statutes, which permit
this to be done in certain cases at law, as is done in all cases
in Courts of Equity. But, generally, parties unnecessarily
and improperly made such, and having no interest in the
matter, may be stricken out, where the cause or nature of the
action is not affected, and no injury can accrue to the defend-
ant. Thus, if the wife is improperly made defendant with
the husband in an action on a contract made during cover-
ture ;® or if several are sued in covenant, and on oyer had, it

 

1 9 Geo. 4,c. 15. See also St.3 & 4 W. 4, c. 42.

2 Hanbury v. Ella, 1 Ad. & El. 61.

3 Webb v. Hill, 1 M. & Malk. 253, per Ld. Tenterden.

4 Winslow v. Merrill, 2 Fairf. 127; Wilson v. Wallace, 8 S. & R.53; At-
kinson v. Clapp, 1 Wend. 71.

5 Colcord v. Swan, 7 Mass. 291; Parsons v. Plaisted, 18 Mass. 189; Whit-
beck v. Cook, 15 Johns. 483.
PART IV.] PRELIMINARY OBSERVATIONS. 11

appears that some of them never became parties to the
deed ;! the names improperly inserted may be stricken out
of the process. But if such amendment will change the
ground of action, or have the effect of constituting a different
party to the record, as, if the suit be against two as partners,
and it is proposed to amend by erasing the name of one, and,
so making it a suit against the other in his several capacity,
it will not be allowed? If the name of the party be mis-
spelled, or the designation of junior be omitted, or a corpo-
ration be sued by a wrong name, the service of process being
right, the mistake may be amended. So, also, the process
may be amended by stating the capacity or trust in which
the plaintiff sues, such as trustee or other officer or agent of
a society beneficially interested in the suit, or the like; or, if
an infant, by inserting the name of his next friend. So,a
scire facias may be amended by the record on which it is
founded.6

§ 11 b. In the next place, as to amendments of the plead-
ings. The general doctrine of variance having already been
discussed in the preceding volume,‘ it will suffice here to
remark, that the Courts manifest an increasing disposition to
give to the statutes of amendments the most beneficial effect,
not suffering the end of the suit to be defeated, where the

 

1 McClure v. Burton, 1 Car. Law Repos. 472. And see Wilson v. King,
6 Yerg. 493, acc. But see Redington v. Farrar, 5 Greenl. 379, where, in
assumpsit against two, an amendment by striking out the name of one of
them was refused.

2 Peck v. Sill, 3 Conn. R. 157. Whether a writ of entry may be amended
by striking out the name of one of the demandants. guere. See Treat v.
McMahon, 2 Greenl. 120; Pickett v. King, 4 N. Hamp. 212, that it may
not be. Rehoboth v. Hunt, 1 Pick. 224, that it may be.

3 Furniss v. Ellis, 2 Brock. 14; Kincaid v. Howe, 10 Mass. 293; Bullard
v. Nantucket Bank, 5 Mass. 99; Sherman v. Connecticut River Bridge, 11
Mass. 338;.Burnham v. Stratford Savings Bank, 5 N. Hamp. 578.

4 Anderson v. Brock, 3 Greenl. 243; Blood v. Harrington, 8 Pick. 552.

5 Maus v. Maus, 5 Watts, 345; Moody v. Stracey, 4 Taunt. 558; Wil-
liams v. Lee, 2 Taylor, 146; Burrows rv. Heysham, 1 Dall. 133; Hazeldine
v. Walker, 1 Har. & Johns. 487; Patrick v. Woods, 3 Bibb, 232.

6 See ante, Vol. 1, § 63-73.
12 LAW OF EVIDENCE. [PART Iv.

record contains the substance of a valid claim, and an amend-
ment is seasonably asked for. The American statutes on
this subject give to the Courts much broader discretionary
powers than are given by any English statutes, prior to Lord
Tenterden’s act; and powers scarcely exceeded by that and
the later statutes! Accordingly, the only question in regard
to the admissibility of an amendment of the pleadings now
is, whether it introduces another and distinct cause of con-
troversy. If it does not, but the original cause of action or
ground of title or defence is adhered to, the allegations and
pleadings may be amended. Thus, if, in an action for
money had and received, the promise be laid as made by the
administrator, when it was the promise of his intestate ;? or,
if the allegation of a demand be omitted, where it was neces-
sary to the foundation of the action ;* or if the indorser of
a note in blank be charged as an original promisor, when
he should have been charged as a guarantor ;° or if the loss
of a vessel be alleged to have been by capture and by perils
of the sea, when it was by barratry ;® or if, in trover, for
promissory notes, or in assumpsit to recover the money due
upon them, they are misdescribed;“ in these and the like
cases the errors may be amended. But to add counts upon
other promissory notes will not be allowed;® nor will the
plaintiff be permitted to amend, in an action against the
sheriff for a false return of bail when none was taken, by
adding a count for refusing to deliver the bail-bond, men-
tioned in his return?

 

1 See 6 Dane’s Abr. ch. 184, art. 1, § 3; art. 11, §§ 7, 8.

2 Haynes v. Morgan, 3 Mass. 208; Ball v. Claflin, 5 Pick. 304; Cassell
v. Cooke, 8 S. & R. 287, per Duncan, J.; Cunningham v. Day, 2S. & R.
1; Kester v. Stokes, 4 Miles, 67; Commonwealth v. Meckling, 2 Watts,
130; Ebersoll v: Krug, 5 Binn. 53, per Tilghman, C. J.; Pullen v. Hutch-
inson, 12 Shepl. 249.

3 Eaton v. Whitaker, 6 Pick. 465.

4 Ewing v. French, 1 Blackf. 170.

5 Tenney v. Prince, 4 Pick. 385.

6 Anon. 15 S. & R. 83.

7 Hoffnagle v. Leavitt, 7 Cow. 517; Stanwood v. Scovell, 4 Pick. 422.
8 Farm. & Mech. Bank ». Isracl, 6 S. & R. 294.
9 Eaton v. Ogier, 2 Greenl. 46. See further, Butterfield v. Harrell, 3 N.
PART IV.] PRELIMINARY OBSERVATIONS. 18

§11c¢. The recent English statutes having been framed for
the like objects, it may be useful here to advert to their pro-
visions and the decisions under them. The statute, termed
Lord Tenterden’s Act,) empowers the Courts “to cause the
record, on which any trial may be pending in any civil
action, or in any indictment or information for any misde-
meanor, when a variance shall appear between any matter in
writing or in print produced in evidence, and the recital or
setting forth thereof upon the record whereon the trial is pend-
ing, to be forthwith amended in such particular,” on payment
of such costs, if any, as the Court shall think reasonable.
By a subsequent statute,” this power was extended not only
to civil actions, but to informations in the nature of a quo
warranto, and proceedings on a mandamus, the Courts being
authorized, “when any variance shall appear between the
proof and the recital or setting forth on the record, writ, or
document on which the trial is proceeding, of any contract,
custom, prescription, name, or other matter, in any particular,
— in the judgment of the Court or Judge not material to the
merits of the case, and by which the opposite party cannot
have been prejudiced in the conduct of his action, prosecu-
tion, or defence, to be forthwith amended,” upon such terms
as to payments of costs, or postponing the trial, or both, as
the Court or Judge shall think reasonable ; and if the amend-
ment, being in a particular not material to the merits, is
such as that the opposite party may have been prejudiced
thereby in the conduct of his suit or defence, then upon such
terms as to payment of costs, and withdrawing the record,
or postponing the trial, as the Court or Judge shall think
reasonable. ae

§ 11d. These statutes have been administered in England
in the liberal spirit in which they were conceived ; care being
taken, as in the United States, that no new and distinct

 

Hamp. 201; Edgerley v. Emerson, 4 N. Hamp. 147; Carpenter v. Gookin,
2 Verm. 495. —
1 Stat. 9 Geo. 4, ¢. 15. 2 Stat. 3.& 4 W. 4, c. 42.

VOL. Il. 2
14 LAW OF EVIDENCE. [PART Iv.

cause of controversy be created. Thus, in slander, where
the words charged were, “ S. is to be tried,” for buying stolen
goods, and the words proved were, “I have heard that he is
to be tried,” an amendment was allowed, as it went only to
the amount of the damages, and. not to the merits of the
action! So, where the words stated were English, and the
words proved were Welsh.2. So, where the allegation was
of a libel published in a certain newspaper, and the proof was
of a slip of printed paper, not appearing to have been cut
from that newspaper, though the newspaper contained a
similar article2 So, where the plea to an action upon a bill
of exchange was, that the bill was given for two several
sums lost at play in two several games, and the proof was
that the parties played at both games, and that the defendant
lost the gross sum, in all, but not that he lost any amount
at one of the games, it was held amendable.*| An amend-
ment has also been allowed in assumpsit upon the warranty
of a horse, where a general warranty was alleged, and the
proof was of a warranty with the exception of a particular
foot.6 So, where the allegation was with a qualification, and
the proof was of a contract in general terms, without the
qualification. In like manner, where the contract, instru-
ment, or duty, has been misdescribed in the record, it is held
amendable ; as, in asswmpsit on a charter-party, where the
allegation of the promise, being intended only as a statement
of the legal effect of the instrument, was erroneous, the plain-
tiff was permitted to amend, either by striking out the alle-
gation, or by substituting a corrected statement.’ So, in

 

1 Smith v. Knowelden, 2 M. & G. 561.

2 Jenkins v. Phillips, 9 C. & P. 766, per Coleridge, J. The contrary
was held, under the former statutes. Zenobio v. Axtell, 6 T. R. 162; Wor-
mouth v. Cramer, 8 Wend. 394.

3 Foster v. Pointer, 9 C. & P. 718, per Gurney, B.

4 Cooke v. Stafford, 18 M. & W. 379.

5 Hemming v. Parry, 6 C. & P. 580. See, also, Read v. Dunsmore, 9 C.
& P. 588. \

6 Evans v. Fryer, 10 Ad. & El. 609.

7 Whitwill v. Scheer, 8 Ad. & El. 301. But in a subsequent case of
covenant, where it was objected that no such covenants could be implied in
PART IV.] PRELIMINARY OBSERVATIONS. 15

assumpsit “for the use and occupation of certain standings,
market-places, and sheds,” where the proof was of a demise
of the tolls to be collected at those places, an amendment
was allowed.! So, where the promise alleged was to “ pay”
for goods furnished to another, and the proof was, to “ guar-
antee” the payment ;? and where the declaration was upon
an instrument described as a bill of exchange, but the instru-
ment produced appeared in fact to be a promissory note ;?
and where a guaranty was set forth as for advances to be
made by A., and the proof was of a guaranty for advances
to be made by A., or any member of his firm, or e converso ;*
and where the declaration charged the defendant upon the
contract as a carrier, and the proof was, that if liable at all,
it was only as a wharfinger, on a contract to forward ;° and
where the contract alleged was, to build for the plaintiff a
certain room, booth, or building, according to certain plans
then agreed on, by the 28th of June, for the sum of £20, and
the contract proved was, to erect. certain seats or tables, for
£25, to be,completed four or five days before that day, being
the day of the coronation ;® and where, in debt on a bond,
the penalty was stated to be £260, but in the bond produced
it was only £200;7 and in case against the sheriff for a
voluntary escape, where the proof ‘was, that the officer did
not arrest, but negligently omitted so to do, having opportu-
nity ;® and even where, in assumpsit upon a promissory note,

 

the deed, it was held, by Maule, J., that the statutes of amendment were
designed to meet variances arising from accidental slips,-and not to extend
to cases where the pleading has been intentionally and deliberately, but
erroneously framed; and he therefore refused to allow an amendment.
Bowers v. Nixon, 2 Car. & Kir. 372.

1 Mayor, &c. of Carmarthen v. Lewis, 6 C. & P. 608.

2 Hanbury v. Ella, 1 Ad. & El. 61.

3 Moilliet v. Powell, 6 C. & P. 233.

4 Chapman »v. Sutton, 2 Man. Gr. & Scott, 634; Boyd v. Moyle, Ibid.
644.

5 Parry v. Fairhurst, 2 C. M. & R.190; 5 Tyrw. 685.

6 Ward v. Pierson, 5 M. & W.16; 7 Dowl. 382.

7 Hill v. Salt, 2 C. & M. 420; 4 Tyrw. 271.

8 Guest v. Elwes, 5 Ad. & El. 118; 2.N. & P. 230.
16 LAW OF EVIDENCE. [paRT Iv.

described as made by the defendant on the 9th of Novem-
ber, 1838, for £250, payable on demand, the note produced
bore date November 6th, 1837, and was payable with inter-
est twelve months after date, it also not appearing that there
existed any other note between the parties;! in these, and
many similar cases, amendments have been allowed.

§ 11. On the other hand, the Courts, acting under these
statutes, have refused amendments, where the object was
merely to supply material omissions, as well’as where the
amendment will probably deprive the defendant of a good
defence, which he otherwise might have made, or would prob-
ably require new pleadings, or would introduce a transac-
tion entirely different from that stated in the plea2 Thus,
an amendment has. been refused in trespass, to extend the
justification to certain articles omitted in the plea;* and in
replevin, to extend the avowry in the like manner So, to
enlarge the ad damnum in the declaration.6 So, in assumpsit
by the vendee against the vendor of goods, for non-delivery,
where the contract alleged was for a certain price, and the
contract proved was for the same nominal price, with a dis-
count of five per cent., an amendment was refused, as tending,
under the circumstances stated at the bar, to preclude a good
defence.’ And, where the plaintiff alleged title to a stream
of water as the possessor of a mill, which the defendant trav-
ersed, and the proof was, that he was entitled only as owner
of the adjoining land, an amendment was refused, on the

 

1 Beckett v. Dutton, 7 M. & W. 157; 4 Jur. 993; 8 Dowl. 865.

2 Perry v. Watts, 3 Man. & Gr. 775, as explained in Gurford v. Bayley,
Thid. 784.

3 David v. Preece, 5 Ad. & El. 440, N. S.

4 John v. Currie, 6 C. & P. 618.

5 Bye & Bower, 1 Car. & Marshm. 262. In the United States, amend-
ments in these two cases would doubtless be allowed.

6 Watkins v. Morgan, 6 C. & P. 661. In the United States it has been
held otherwise. See McLellan v. Crofton, 6 Greenl. 307; Bogart v. Mc-
Donald, 2 Johns. Cas. 219; Danielson v. Andrews, 1 Pick. 156. And see
Tomilson v. Blacksmith, 7 T. R. 132.

7 Tvey v. Young, 1 M. & Rob. 545.
PART Iv.] PRELIMINARY OBSERVATIONS. 17

ground, that it might require a change of the issue, and that
the defendant may have been misled by the plaintiffs mode
of pleading.?

§ 12. It is further to be observed, that though every part
of a written document is descriptive, and therefore material
to be proved as alleged, yet if, in declaring upon such an
instrument, the allegation is, that it was made upon such a
day, without stating that it bore date on that day, the day in
the declaration is not material; and therefore need not be
precisely proved ; but if it is described as bearing date on a
certain day, the date must be shown to be literally as alleged,
and any variance herein will be fatal unless amended2 The
date is not of the essence of the contract, though it is essen-
tial to the identity of the writing, by which the contract may
be proved. The plaintiff, therefore, may always declare ac-
cording to the truth of the transaction, only being, careful,
if he mentions the writing and undertakes to describe it, to
describe it truly?

§ 13. But an immaterial discrepancy between the record
and the deed itself is not regarded. Thus, upon oyer of a
deed, where the declaration was, that it bore date in a cer-
tain year of our Lord, and of the then king,.and the deed
simply gave the date thus, —“ March 30, 1701,” — without
mention of the Christian era, or of the king’s reign, it was
held well. So, where the condition was, “ without any fraud
or other delay,” the omission of the word “other” in the
oyer was held immaterial. Nor will literal misspelling be
regarded as a variance.

 

1 Frankhum v. E. of Falmouth, 6 C. & P. 529; 2 Ad. &’El. 452.

2 Coxon v. Lyon, 2 Camp. 307, n.; Anon. 2 Camp. 308,n.; Cor. Lord
Ellenborough.
3 Hague v. French, 3 B. & P. 173; De la Courtier v. Bellamy, 2 Show.
422. @

4 Holman v. Borough, 2 Salk. 658.

5 Henry v. Brown, 19 Johns. 49. ,

6 Cully. Sarmin, 3 Lev. 66; Waugh v. Bussell, 5 Taunt. 707. The omis-

Q*
18 LAW OF EVIDENCE. [PART IV.

§ 14. Ordinarily, in stating an instrument or other matter
in pleading, it should be set forth, not according to its terms,
or its form, but according to its effect in law; for it is under
its latter aspect, that it is ultimately to be considered. Thus,
if a joint tenant conveys the estate to his companion by the
words “ give, grant,” &c., the deed is to be pleaded as a re-
lease, such only being its effect in law. So, if a tenant for
life conveys to the reversioner by words of grant, it must be
pleaded, not as a grant, but as a surrender So, where a
bill of exchange is made payable to the order of a person,
it may be declared upon as a bill payable to the person
himself? If no time of payment be mentioned, the instru-
ment should be declared upon as payable on demand! If a
bill be drawn or accepted, or a deed be made, by an agent in
the name of his principal, it should be pleaded as the act of
the principal himself* And a bill payable to a fictitious per-
son or his order, is, in effect, a bill payable to bearer, and
may be declared on as such, in favor of a bond fide holder,
ignorant of the fact, against all the parties who had knowl-
edge of the fiction.®

§ 15. But, on the other hand, it will not always suffice to
adhere to the literal terms of the instrument, in setting it
forth in the declaration; for sometimes the true interpreta-
tion of the instrument itself may lead to a result totally
different from the intendment of law upon the face of the
declaration. Thus, where a bill was drawn and dated at
Dublin, for a certain sum, and in the pleadings it was de-
scribed as drawn “at Dublin, to wit, at Westminster,” with-
out any mention of Ireland, or of Irish currency, it was held,

 

sion of the word “sterling,” as descriptive of the kind of currency, is imma-
terial. Kearney v. King, 2 B. & Ald. 301.

1 Stephen on Pl. 389, 390.

2 Smith v. M’Clure, 5 Hast, 476; Fay v. Goulding, 10 Pick. 122.

3 Gaylord v. Van Loan, 15 Wend. 308.

4 Heyes v. Haseltine, 2 Campb. 604.

5 Chitty on Bills, 178; Bayley on Bills, 26, 481; Grant v. Vaughan,
3 Burr. 1516 ; Minet v. Gibson, 1 H. Bl. 569; Story on Bills, § 56.
PART Iv.]’ PRELIMINARY OBSERVATIONS. 19

that here was a material variance between the allegation and
the evidence. For though the place and the sum corre-
sponded, even to the letter, yet by the legal interpretation of
the bill, the currency intended was Irish, whereas by the alle-
gation in the record, the Court could not legally understand
any other than British sterling, because no other was averre@,
and the bill was not alleged to have been drawn in Ireland.
So, where a note was made without any mention of the time
of payment, and none was averred in the declaration, the
judgment was reversed, upon error brought, the plaintiff not
having declared, upon the contract, according to its legal
effect, but on the evidence only.2

§ 16. In regard to the proof of the formal execution of
deeds, bills of exchange, and other written documents, it was
formerly the right of the adverse party to require precise
proof of all signatures and documents, making part of the
chain of title in the party producing them. But the great
and unnecessary expense of this course, as well as the incon-
venience and delay which it occasioned, have led to the
adoption of salutary rules, restricting the exercise of the
right to cases, where the genuineness of the instrument is
actually in controversy, being either put in-issue by the
pleadings, or by actual notice, given pursuant to the rules
of the Court.

 

 

1 Kearney v. King, 2 B. & Ald. 301. Proof of a contract for bushels
oats according to the Hartland Quay measure, will not support a declaration
for the same quantity without any mention of the kind of measure. Hockin
v. Cooke, 4 T. R. 314.

2 Bacon v. Paige, 1 Conn. R. 404. But see Herrick v. Bennett, 8 Johns.
374, where such a declaration was held well on demurrer.

3 By the Rules of Hill. T. 1834, Reg. 20, (10 Bing. 456,) either party,
after plea pleaded, and a reasonable time before trial, may give notice to
the other of his intention to adduce in evidence certain written or printed
documents; and unless the adverse party shall consent, in the manner
therein prescribed, to admit their formal execution, or the truth of the
copies to be adduced, he may be summoned before a Judge to show cause
why he should not consent to such admission, and ultimately, if the Judge
shall deem the application reasonable, may be compelled to pay the costs of
the proof. See also Tidd’s New Practice, pp. 481, 482. In some of the
4

20 LAW OF EVIDENCE. [PART Iv.

§ 17. If the instrument declared on is lost, the fact of the
loss may be proved by the affidavit of the plaintiff, a foun-
dation being first laid for this proof, by evidence, that the
instrument once existed, and that diligent search has been
made for it in the places where it was likely to be found.

«@

We now proceed to the consideration of the evidence to

be offered under particular issues, in their order.

 

United States, the original right to require formal proof of documents, re-
mains as at Common Law, unrestricted by rules of Court. In others, it has
been restricted either to cases where the genuineness of the document has
been put in issue by the pleadings, or where previous notice of an intention
to dispute it has been seasonably given; (Reg. Gen. Sup. Jud. Court, Mass.
1836, Reg. LIII. 24 Pick. 399 ;) or, where the attorney has been instructed
by his client that the signature is not genuine; or, where the. defendant,
being present in Court, shall expressly deny that the signature is his. (Reg.
Gen. Sup. Jud. Court, Maine, 1822, Reg. XX XIII. 1 Green|. 421.) In the
Circuit Court, U. 8., First Circuit, the defendant is not permitted to deny
his signature to a note or bill of exchange, or the signature of a prior indorser,
unless upon affidavit made of reasonable cause, necessary for his defence.
Reg. 34. In the Seventh Circuit, the rule requires that the defendant shall
first make affidavit that the instrument was not executed by him. And this
rule has been held to be legal, under the Judiciary Act of March 2, 1793,
c. 22, Mills v. Bank of the United States, 11 Wheat. 439, 440. By the
law of South Carolina, the plaintiff is not obliged to produce the subscribing
witnesses, to a bond or note, but may prove its execution by any other wit-
ness, unless the defendant will swear that it is not his signature. Statutes
at Large, Vol. 5, p. 435. As to the proof, in equity, of the execution of
instruments, see post, Vol. 3, § 308, and note
1 Ante, Vol. 1, §§ 349, 558.
PART IV.] ABATEMENT. 21

ABATEMENT. :

§ 18. Sucn of the tauses of abatement as may also be
pleaded in bar, will generally be treated under their appro-
priate titles. It is proposed here to consider those only
which belong more especially to this title.

. §19. The plea of alien enemy must be pleaded with the
highest degree of legal certainty, or, as it is expressed in the
books, with certainty to a certain intent in particular; that
is, it must be so certain as to exclude and negative every
case in which an alien enemy may sue. It therefore states
the foreign country or place in which the plaintiff was born ;
that he was born and continues under allegiance to its sover-
eign, of parents under the same allegiance, or adherents to
the same sovereign; that such sovereign or country is an
enemy to our own; and, if he is here, that he came hither
or remains, without a safe-conduct or license ;? and that he
has been ordered out of the country by the Presidents proc-
lamation.? If the plaintiff should reply, that he is a native
citizen and not an alien, concluding, as seems proper in such
cases, to the country, the defendant has the affirmative, and

 

1 [A plea in abatement should exclude all matter which, if-alleged on the
opposite side, would defeat the plea. Therefore where: the plea is founded
upon defective service of the process, it is insufficient, if it alleges that no
summons was served on the defendant, unless it also sets forth that the de-
fendant was at the time an inhabitant of the State. Tweed v. Libbey,
37 Maine, (2 Heath,) 49. See Bank of Rutland v. Barker, 1 Williams,
(Vermont,) 293.]

2 Casseres v. Bell, 8 T. R. 166; Wells v. Williams, 1 Ld. Raym. 282;
1 Chitty on Pl. 214; Stephen on Pl. 67. License and safe-conduct are
implied, until the President shall think proper to order the party, either by
name or character, out of the United States. - 10 Johns. 72.

3 Stat. United States, July 6, 1798 (ch. 75); Clarke v. Morey, 10 Johns.
69, 72; Bagwell v. Babe, 1 Rand. 272; Russell v. Skipwith, 6 Binn. 241.
22 LAW OF EVIDENCE. [PART Iv.

must prove that the plaintiff is an alien, as alleged in the
plea! If the plaintiff should reply that he was duly natur-
alized, the proper evidence of this is the record of the Court
in which it was done. If the judgment is entered of record
in legal form, it closes all inquiry, it being, like other judg-
ments, complete evidence of its own validity? These pro-
ceedings in naturalization have been treated with great in-
dulgence, and the most liberal intendments made in their
favor. The oath of allegiance appearing to have been duly
taken, it has been held, that no order of the Court, that he
be admitted to the rights of a citizen, was necessary, the
record of the oath amounting to a judgment of the Court.
for his admission to those rights. And such record is held
conclusive evidence, that all the previous legal requisites
were complied with.

§ 20. If the plea is founded on a defective or improper
service of the process, as, for example, that it was served on
Sunday, the day will be taken notice of by the Court, and
any almanac may be referred to. So, if the service is made
on apy other day, on which, by public statute, no service
can be made, the like rule prevails; and this, whether the
day is fixed by the statute, or by proclamation by the Ex-
ecutive.®

§ 21. If the defendant, in pleading a misnomer, allege that

 

1 Jackson on Pleading in Real Actions, pp. 62, 65; Smith v. Dovers,

2 Doug. 428. .
2 Spratt v. Spratt, 4 Pet. 393, 408.

3 Priest v. Cummings, 16 Wend. 617, 625.

4 Campbell v. Gordon, 6 Cranch, 176.

5 Stark v. The Chesapeake Ins. Co. 7 Cranch, 420; Ritchie v. Putnam,
13 Wend. 524; Spratt v. Spratt, 4 Pet. 293.

6 Ante, Vol. 1, §§ 5,6. [In an action on a joint contract, want of service
on co-defendants cannot be pleaded in abatement. Harker v. Brink, 4 Zabr.
(N. J.) 333. See Sawtelle v. Jewell, 34 Maine, (4 Red.) 548; and Bonzey
v. Redman, 40 Maine, 336; and the plea is defective unless it excludes all
matter which if alleged in the replication and proved, would avoid the plea.
Tweed v. Libbey, 37 Maine, (2 Heath,) 49.]
PART IV.] ABATEMENT. 28

he was baptized by such a name, though the averment of
his baptism was unnecessary, yet he is bound to prove the
allegation, as laid, by producing the proper evidence of his
baptism! This may be proved by production of the register
of his baptism, or, a copy of the registry or record, duly
authenticated, together with evidence of his identity with
the person there named? If there is no averment of the fact
of baptism, the name may be proved by any other competent
evidence, showing that he bore and used that name?

§ 22. In criminal cases, it is a good objection, in abate-
ment, that twelve of the grand-jury did not concur in finding
the bill; in which case the fact may be shown by the testi-
mony of the grand-jurors themselves, it not being a secret of
State, but a constitutional right of the citizen.‘ fog

§ 23. In real actions, non-tenure is classed among pleas
in abatement, because it partakes of the character of dilatory
pleas; though it shows that the tenant is not liable to the
action, in any shape, inasmuch as he does not hold the
land’ The replication, putting this fact in issue, alleges
that the tenant “was tenant as of freehold of the premises,”
andconcludes to the country. ‘Tenure may be proved primé

 

1 Ante, Vol. 1, § 60; Weleker v. Le Pelletier, 1 Campb. 479.

2 Ante, Vol. 1, §§ 484, 493.

3 Holman'v. Walden, 1 Salk. 6. [Where the name of the plaintiff is
changed pending the suit, the suit is not thereby abated. Town of Ottawa
v. La Salle County, 11 Ill. 654.]

4 Low’s case, 4 Greenl. 439.

5 Saund. 44, n. (4); Jackson on Plead. in Real Actions, p. 91. The
form of the plea is this: “And the said T. comes and defends his tight,
when, &c., and says, that he cannot render to the said D. the tenements
aforesaid with the appurtenances, because, he says, that he is not, and was
not on the day of the purchase of the original writ in this action, nor at
any time afterwards, tenant of the said tenements as of freehold; and this
he is ready to verify. Wherefore he prays judgment of the writ aforesaid,
and that the same may be quashed; and for his costs.” See Jackson on
Plead. in Real Actions, p. 93; Story’s Pleadings, p. 41; Stearns on Real
Actions, App. No. 49.
24 LAW OF EVIDENCE. [PART IV.

facie by evidence of actual possession.’ It is also shown, by
proof of an entry with claim of title;? or, by a deed of con-
veyance from a grantor in possession. If a disclaimer is
pleaded in abatement, the only advantage in contesting it
seems to be the recovery of costs, where they are given by
statute to the party prevailing. In such cases, the only
proper replication is the same, in form, as to the plea of non-
tenure, as before stated.*

§ 24. The non-joinder of proper parties is also pleadable in
abatement. If the defendant plead that he made the promise
jointly with another, the plea will be maintained by evidence
of a promise jointly with an infant;® for the promise of an
infant is in general voidable only, and not void ;® and it is

 

1 Newhall v. Wheeler, 7 Mass. 189, 199.

2 1 Mass. 484, per Sewall, J.; Proprietors Kennebec Purchase v. Springer,
4 Mass. 416; Higbee v. Rice, 5 Mass. 344, 352.

3 Pidge v. Tyler, 4 Mass. 541; Knox v. Jenks, 7 Mass. 488.

4 Jackson’s Plead. pp. 100, 101. The form of a general disclaimer, in
abatement, is as follows: “And the said T. comes and defends his right
when, &c., and says that he has nothing, nor does he claim to have anything
in the said demanded premises, nor did he have, nor claim to have, anything
therein on the day of the purchase of the original writ in this action, nor at
any time afterwards; but he wholly disclaims to have anything in the said
premises ; and this he is ready to verify; wherefore he prays judgment of
the writ aforesaid, and that the same may be quashed ; and for his costs.”
Ib. p. 100.

5 Gibbs v. Merrill, 3 Taunt. 307; Woodward v. Newhall, 1 Pick. 500.
The form of such plea may be thus: ‘“ And the said D. comes, &c., when,
&c., and prays judgment of the writ and declaration aforesaid, because he
says, that the said several promises in said declaration mentioned, were and
each of them was made by one A. B. jointly with the said D.; which A. B.
is still alive, to wit, at ——, and this he is ready to verify. Wherefore,
- because the said A. B. is not named in said writ and declaration, the said
D. prays judgment of said writ and declaration, and that the same may be
quashed.” Story’s Pl. 35; 1 Wentw. Pl. 17; 1 Chitty’s Precedents, p. 197;
Gould v. Lasbury, 1 C. M. & R. 254; Gale v. Capern, 1 Ad. & El. 102.

6 Fisher v. Jewett, 1 Berton’s R. 35. In this case, upon an able review
of the authorities, it was held, by the learned Court of the Province of New
Brunswick, that an infant’s negotiable note was voidable only, and not
void. See also 2 Kent, Comm. 234-236; 4 Cruise’s Dig. 14, note (2),
Greenleaf’s ed.)
PART Iy.| ABATEMENT. 25

good until avoided by himself. If he has avoided the prom-
ise, this fact will constitute a good replication, and must be
proved by the plaintiff. Where the plea was, that several
persons, named in the plea, being the assignees of H., a
bankrupt, ought to have been joined as co-defendants, it was
held, that proof of their having acted as assignees was not
sufficient, and that nothing less than proof of the assignment
itself would satisfy the allegation. And if, on the face of
the assignment, it should appear that there were other as-
signees, not named in the plea,.this would falsify the plea.?
If, upon the plea of the non-joinder of other partners as
defendants, it is proved that, though the contract was made
in the name of the firm, it was made by the agency of the
defendant alone, and for his own use, and the proceeds were
actually so applied by him, in fraud of his partners, the plea
will not be maintained?

§ 25. In cases of partnership, if one be sued alone, and
plead this plea, proof of the existence of secret partners will
not support it, unless it also appears that the plaintiff had
knowledge of the fact at the time of the contract. If he
subsequently discovers the existence of a secret partner, he
may join him or not in the action.’ But if the partnership

 

1 Pasmore v. Bousfield, 1 Stark. R. 296, per Ld. Ellenborough.

2 Ibid. s

3 Hudson v. Robinson, 4 M. & 8.475. So if one partner was an infant,
and the bill was accepted by the other, in the name of the firm, it has been
held, that he was chargeable in a special count, as upon an acceptance by
himself in the name of the firm.’ Burgess v. Merrill, 4 Taunt. 468. See
further as to abatement, Infra, tit. AssumpPsIT, §§ 110, 130-134. [The
non-joinder of a co-tenant as plaintiff in an action of tort, can be taken
advantage of only by plea in abatement. Phillips v. Cummings, 11 Cush.
469. See also Putney v. Lapham, 10 Ib, 234.

4 Baldney v. Ritchie, 1 Stark. R. 338. But if the suit is against one secret
partner, it is cause of abatement, that another secret partner is not joined.
Ela v. Rand, 4 N. Hamp. 307; Story on Partn. § 241; Infra, tit. Assump-
sit, §§ 110, 130-134.

5 Ibid.; De Mautort v. Saunders,1 B. & Ad. 398; Ex parte Norfolk,
19 Ves. 455, 458; Mullet v. Hook, 1 M. & Malk. 88.

VOL. II. 3
26 LAW OF EVIDENCE. [PART Iv.

is ostensible and public, and one partner buys goods for the
use of the firm, and in the ordinary course of the partnership
business, and is sued alone for the price; proof that the
goods were so bought and applied, will support the plea of
non-joinder, though the plaintiff did not, in fact, know of the
existence of the partnership, unless there are circumstances
showing that the partner dealt in his own name.’ Any acts
done by the defendant in these cases, such as writing letters
in his own name, and the like, tending to show that he
treated the contract as his own and not his partner’s, may be
given in evidence by the plaintiff, to disprove the plea? If
both partners reside abroad, and one alone being found in
this country is sued here, and pleads the non-joinder of the
other in abatement, his foreign domicile and residence are a
good answer to the plea. So, the bankruptcy and discharge
of the other, are made by statute? a good replication.

§ 26. Where the pendency of a prior suit is pleaded in
abatement, the plea must be proved by production of the
record, or by an exemplification, duly authenticated.® If
the priority is doubtful, both suits being commenced on the
same day, it will be determined by priority of the service of
process.6 And if both suits were commenced at the same
time, the pendency of each abates the other.’ But the prin-

 

1 Alexander v. McGinn, 3 Watts, 220.

2 Murray v. Somerville, 2 Campb. 99, n.; Clark v. Holmes, 3 Johns. 149 ;
Hall v. Smith, 1 B. & C. 407; Marsh v. Ward, Peake’s Cas. 130.

3 Guion v. McCulloch, N. Car. Cas. 78. By Stat. 3 & 4.W. 4, ¢. 42, § 8,
the plea itself is bad, unless it shows that the other party is resident within
the jurisdiction.

4 Stat. 3&4 W. 4, c.42,§ 9. Quere, whether it be good by the Com-
mon Law; and see Infra, tit. AssumpsiT, § 135.

5 Commonwealth v. Churchill, 5 Mass. 174; Parker v. Colcord, 2 N.
Hamp. 36.

6 Morton v. Webb, 7 Verm. R. 124.

7 Beach v. Norton, 8 Conn. R. 71; Haight v. Holley, 3 Wend. 258. One
form of the plea of prior action pending, is as follows: * And the said [de-
fendant] comes and defends, &c., when, &c., and says that he ought not
to be compelled to answer to the writ and declaration of the plaintiff afore-
PART Iv.] ABATEMENT. 27

ciple of this plea is, that the same person shall not be twice
vexed for the same cause of action. If, therefore, the first
action was against one of two joint contractors, and the
second action is against the other, the pendency of the former
is not pleadable in abatement of the latter.

 

said, because he says, that the plaintiff heretofore, to wit, at the [here de-
seribe the Court and Term] impleaded the said [defendant] in a plea of ,
and for the same cause in the declaration aforesaid mentioned ; as by the
record thereof, in the same Court remaining, appears; that the parties in
the said former suit and in this suit are the same parties; and that the said
former suit is still pending in the said Court last mentioned ; and this he is
ready to verify. Wherefore he prays judgment if he ought to be compelled
to answer to the writ and declaration aforesaid, and that the same may be
quashed,” &c. Story’s Pleadings, p. 65; 1 Chitty’s Precedents, p. 201. The
last averment, that the former suit is still pending, is generally inserted ;
but it has been held to be unnecessary ; it being sufficient if the plaintiff has
counted in the first action, so that it may appear of record that both were
for the same cause. See Commonwealth v. Churchill, 5 Mass. 177, 178; 39
H. 6, 12, pl. 16; Parker v. Colcord, 2 Hamp. 36; Gould on Pleading, ch. 5,
§ 125. But see Toland v, Tichenor, 3 Rawle, R. 320. [Where two suits,
one by declaration and one by attachment, were commenced on the same
day between the same parties and for the same cause of action, the Court
will presume, the record showing nothing to the contrary, that the suit by
declaration was first commenced. Wales v. Jones, 1 Manning, (Mich.) 254.]

1 Henry v. Goldney, 10 Jur. 439. [Lis pendens, in a foreign country, is
not a good plea in abatement. Lyman v. Brown, 2 Curtis, C. C. R. 559.
Nor can the pendency of a prior suit in another State, between the same
parties and for the same cause of action, be pleaded in abatement. McdJil-
ton v. Love, 13 Ill. 486. See also Hatch v. Spofford, 22 Conn. 485; Hogg
v. Charlton, 25 Penn. State R. (1 Casey,) 200; Drake v. Brander, 8 Texas,
351. The pendency of a former suit cannot be pleaded in abatement, where
it appears that the former suit is ineffectual or invalid. Quinebaug Bank v.
Tarbox, 20 Conn. 510; Rogers v. Hoskin, 15 Geo. 270; Adams v. Gardiner,
3 B. Monr. 197.

The pendency of a suit in a State Court, between the same parties and
for the same cause of action, may be pleaded in abatement in the Federal
Courts. Earl v. Raymund, 4 McLean, 233. Where the Court is not under
the same sovereignty, the plea must show jurisdiction of the former suit.
White v. Whitman, 1 Curtis, C. C. R. 494. So the pendency of another ac-
tion for the same cause between the same parties in a Federal Court having
jurisdiction, is a good plea in abatement in the State Courts for the same dis-
trict. Smith v. Atlantic Mutual Fire Insurance Co. 2 Foster, (N. H.) 21.

Where the two suits are in their nature different, as where the one is

 
28 LAW OF EVIDENCE. [PART Iv.

§ 27. In all cases where a fact is pleaded in abatement,
and issue is taken thereon, if it be found for the plaintiff, the
judgment is peremptory and in chief, quod recuperet.1 The
plaintiff should therefore come prepared to prove his dam-
ages ; otherwise he will recover nominal damages only? If
the issue is found for the defendant, the judgment is that the
writ and declaration be quashed.?

 

in personam and the other in rem, the pendency of the one cannot be pleaded
in abatement of the other. Harmer v. Bell, 22 Eng. Law & Eq. R. 62.
See also Clark v. Wilder, 25 Penn. State R. (1 Casey,) 314. The pen-
dency of one indictment is no good plea in abatement to another indictment
for the same cause ; but when either indictment is tried, and a judgment
rendered thereon, such judgment will afford a good plea in bar to the other
indictment. Commonwealth v. Drew, 3 Cush. 282; Dutton v. State, 5 Ind.
(Porter,) 533.]

1 Eichorn v. Le Maitre, 2 Wils. 367; Bowen v. Shapcott, 1 East, 542 ;
Dodge v. Morse, 3 N. Hamp. 232; Jewitt v. Davis, 6 N. Hamp. 518.

2 Weleker v. Le Pelletier, 1 Campb. 479; [Good v. Lehan, 8 Cush. 301.]

3 1 Saunders’s Pl. & Ev., tit. ABATEMENT.
PART Iv.] ACCORD AND SATISFACTION. 29

ACCORD AND SATISFACTION.

§ 28. In the plea of accord and satisfaction, the issue is
upon the delivery or acceptance of something, in satisfaction
of the debt or damages demanded.! In cases of contract for
the payment of a sum of money, the payment of a less sum
will not be a good satisfaction ; unless it was either paid and
accepted before the time when it was to have been paid, or
at a different place from that appointed for the payment ; but
in the case of a simple contract for a larger sum, a negotiable
security given for a less sum may be a good satisfaction.?
The acceptance of a collateral thing, of value, whenever and
wherever delivered, is a good satisfaction. And if the action
is for general and unliquidated damages, the payment and
acceptance of a sum of money as a satisfaction, is a good bar?

 

1 The plea is, that, “ after the making of the promises in the declaration
mentioned,” (in assumpsit,) or, “ after committing the said supposed griev-
ances in the declaration mentioned,” (in case,) or, “‘ trespasses,” in (trespass,)
or, “after the making of the said writing obligatory,” (in debt, or covenant,)
“to wit, on, (&c.) and before (or after) the commencement of this suit, he
the said (defendant) delivered to the plaintiff, and the plaintiff then accepted
and received of and from the said (defendant) [here describing the goods or
thing delivered] of great value, in full satisfaction and discharge of the sev-
eral promises,” [or, damages, or debts and moneys, as the action may be,]
“in the declaration mentioned, and of all the damages by the plaintiff sus-
tained by reason of the non-performance,” [or non-payment, as the action
may be,] “thereof. And this,” &c. The usual form of the replication is by
protesting the delivery of the thing, and traversing the acceptance of it in
satisfaction. Chitty’s Precedents, pp. 205, 444 a, 619; Story’s Pleadings, pp.
120, 156; Stephen on Pl. 235, 236.

2 Sibree v. Tripp, 15 M. & W. 23.

3 Fitch v. Sutton, 5 East, 230; Steinman v. Magnus, 11 Hast, 390; Co.
Lit. 212 b; Cumber v. Wane, 1 Stra. 426. But this case of Cumber v.
Wane has recently been limited, in Sibree v. Tripp, 15 M. & W. 23, to the
naked case of the acceptance of a less sum in satisfaction of a greater.

3%
30 LAW OF EVIDENCE. [PART Iv.

But if the action is upon covenant, the satisfaction must
have been made after breach; for if it were before breach, it
is not good. And where a duty in certain, accrues by deed,
tempore confectionis scripti, as, by an obligation to pay a cer-
tain sum of money, this certain duty having its origin and
essence in the deed alone, the obligation, it seems, is not dis-
charged but by deed; and therefore a plea of accord and
satisfaction of the bond by matter en pais would be bad;

but if it were a bond with condition, and the plea in such a
case had been in discharge of the sum mentioned in the con-
dition of the bond, it would be good?

§ 28a. The facts, in respect to the arrangement or accord
between the parties, being ascertained, their effect is purely a
question of law, and is not to be submitted to the Jury. Thus,
where A. and B. having mutual causes of action in tort, and
meeting for the purpose of adjusting the demands of B. only,
it was insisted by the latter, that A. should pay him therefor
asum of money and give him a receipt in full of all demands,
which was accordingly done, but nothing was said about A.’s
cause of action ; it was held that this was a good accord and
satisfaction of the demand of A. against B2

§ 29. In the United States, an accord with satisfaction
may be given in evidence under the general issue in assump-
sit, and in actions on the case; but in debt, covenant, and

 

Thomas v. Heathorn, 2 B. & C. 477; Pinnel’s case, 5 Co. 117; Smith v.
Brown, 3 Hawks, 580; Wilkinson v. Byers, 1 Ad. & El. 113, per Parke, J.;
Watkinson v. Inglesby, 5 Johns. 391, 392; Seymour v. Minturn, 17 Johns.
169; Bateman v. Daniels, 4 Blackf. 71. But payment and acceptance of
the principal sum, in full, without the interest, is sufficient. Johnston v.
Brannan, 5 Johns. 271; [See Donohue v. Woodbury, 6 Cush. 148.]

1 Kaye v. Waghorne, 1 Taunt. 428; Snow v. Franklin, Lutw. 108;
Smith v. Brown, 3 Hawks, 580; Hisvper v Hampton, 1H. & J. 675;
[Batchelder v. Sturgis, 8 Cush. 208.]

2 Blake’s case, 6 Co. 43; Neal v. Sheffield, Yelv. 192; Cro. Jac. 254;
§. C. Story’s Plead. 157, note Preston v. Christmas, 2 Wils. 86; Strang
v. Holmes, 7 Cow. 224.

3 Vedder v. Vedder, 1 Den. 257.
PART IV.] ACCORD AND SATISFACTION. 31

trespass, it must be specially pleaded. In England, since the
late Rules, it must be specially pleaded in all cases.

§ 30. As to the parties to an accord, proof of an accord
and satisfaction made by one of several joint obligors, or
joint: trespassers, is good and available to all.2 So, if itis
made to one of several plaintiffs, though no authority appear
from the others to make the agreement.3 If the action is for
an act done by the defendant as the servant of another, an
accord and satisfaction by the latter is a good defence. And
as to.the subject-matter, it is not necessary that it proceed
directly from the defendant; the obligation or security of a
third person who is sui juris, is sufficient,’ if it be accepted
in satisfaction of the whole amount, and not of a part only ;°
though it may be of a less amount than was actually due.’
It is well settled that an accord, alone, not executed, is no bar
to an action for a preéxisting demand. And the rule is equally

 

°

1 Chitty on Pl. 418, 426, 429, 482, 441; Bird v. Randall, 3 Burr, 1353;
Chitty’s Prec. 477, 478; Weston v. Foster, 2 Bing. N. C. 693; 1 Stephen’s
Nisi Prius, 391. Where the plaintiff, in an action of slander, agreed to
waive the action, in consideration that the defendant would destroy certain
writings relative to the charge; and he accordingly destroyed them, this
was held admissible. under the general issue, as evidence of an accord and
satisfaction. Lane v. Applegate, 1 Stark. R. 97.

2 Strang v. Holmes, 7 Cow. 224; Ruble v. Turner, 2 Hen. & M. 38. If
several tort-feasors are jointly sued, and a sum of money is accepted from
one of them, and the action is thereupon dropped, this may be shown asa
full satisfaction in bar of a subsequent action against the others. Dufresne
v. Hutchinson, 3 Taunt. 117.

3 Wallace v. Kelsall, 7 M. & W. 264. But if the payment be to one of
the plaintiffs for his part only of the damages, it is no bar to the action.
Clark v. Dinsmore, 5 N. Hamp. 136.

4 Thurman v. Wild, 11 Ad. & El. 453.

5 Kearslake v. Morgan, 5 T. R. 513; Booth v. Smith, 3 Wend. 66;
Wentworth v. Wentworth, 5 N. Hamp. 410; Bullen v. M’Gillicuddy,
2 Dana, 90.

6 Walker v. Seaborne, 1 Taunt. 526; [Gabriel v. Dresser, 29 Eng. Law
& Eq. R, 266.]

7 Steinman v. Magnus, 11 East, 390; Lewis v. Jones, 4 B. & C. 506,
518; Reay v. White, 1 C. & M. 748; Cranley v. Hillary, 2 M. & S. 120.
82 LAW OF EVIDENCE. [PART Lv.

| Sear, that the person who is to be discharged is bound to do
the act which is to discharge him; and not the other party.!

§ 31. Whether an accord, with a tender of satisfaction, is
sufficient, without acceptance, is a point upon which the
authorities are not agreed. It is, however, perfectly clear,
that a mere agreement to accept-a less sum in composition
of a debt, is not binding, and cannot be set up in bar of an
action upon the original contract.2 Thus, where an agree.
ment was made between a debtor and his creditors, that the
latter should accept five shillings and six pence in the pound,
in full satisfaction of their respective debts, which sum was
tendered and refused; it was held, that this constituted no
bar to an action for the whole debt, for it was without con-
sideration; though it was admitted, that had the debtor
assigned his effects to a trustee, under an agreement for this
purpose, it would have constituted a good consideration, and
would have been valid. So, where the agreement was to
receive part of the debt in money, and the residue in specific
articles, no tender of the latter being averred, though it was
alleged that the defendant was always ready to perform, the
plea was held bad, the accord being only executory.*. But
whether, where the agreement is for the performance of
some collateral act, and is upon sufficient consideration, a
tender of performance is equivalent to a satisfaction, seems
still to be an open question; though the weight of authority
is in the affirmative. In one case, which was very fully con-
sidered, it was laid down as a rule, warranted by the author-
ities, that a contract or agreement, which will afford a com-
plete recompense to a party for an original demand, ought
to be received, as a substitute and satisfaction for such de-

 

1 Cranley v. Hillary, 2M. & S. 120, 122.

2 Cumber v. Wane, 1 Stra. 425; 1 Smith’s Leading Cases, p. 146, (Am.
ed.); 43 Law Lib. 249-263,

3 Heathcote v. Crookshanks, 2 T. R. 24. To the same effect are Tassall
v. Shane, Cro. El. 193; Balston v. Baxter, Ib. 304; Clark v. Dinsmore,
5 N. Hamp. 136; Lynn v. Bruce, 2 H. Bl. 317.

‘Rayne v. Orton, Cro. El. 805; James v. David, 5 T. R. 141.
.

PART Iy.] ACCORD AND SATISFACTION. 33

mand, and is sufficient evidence to support a. plea of accord
and satisfaction! Therefore,-where the holder of a promis-
sory note, agreed in writing with the indorser, to receive
payment in coals, at a stipulated price, and they were ten-
dered accordingly, but refused, the agreement and tender
were held to be a sufficient accord and satisfaction to bar an
action on the note.2 So, where a man’s creditors agreed to
take a composition on their respective debts, to be secured
partly by the acceptances of a third person, and partly by
his own notes, and to execute a composition-deed, contain-
ing a clause of release; it was held by Ld. Ellenborough,
that an action for the original debt could not be maintained
by a creditor, who had promised to come in under the agree-
ment, to whom the acceptances and notes were regularly
tendered, and who refused to execute the composition-deed,
after it had been executed by all the other creditors; the
learned Judge remarking, that a party should not be’ permit-
ted to say there is no satisfaction, to whom satisfaction has
been tendered, according to the terms of the aceord.? But it
has since been held, in this country, that a readiness to per-
form a collateral agreement is not to be taken for a perform-
ance, or as the satisfaction required by law.*

 

1 Coit v. Houston, 3 Johns. Cas. 249, per Thompson, J.; Case v. Barber,
T. Raym. 450; 1 Com. Dig. Accord, B. 4. The latter case of Allen v.
Harris, 1 Ld. Raym. 122, that an accord upon mutual promises is not bind-
ing, because no action lies upon mutual promises, admits the general doc-
trine of the text, though it differs in its application. The same is true of
Preston v. Christmas, 2 Wils. 86. But the doctrine in the text is fully sup-
ported by the decision in Cartwright v. Cooke, 3 B. & Ad. 701. See also
Good v. Cheeseman, 2 B. & Ad. 328, 335. Sed vid. Bayley v. Homan, 3
Bing. N. C. 915, per Tindal, C. J.

2 Coit v. Houston, 3 Johns. Cas. 243. The same principle seems to have
been conceded by Ashhurst and Grose, JJ., in James v. David, 5 T. R. 141.

3 Bradley v. Gregory, 2 Campb. 383. And see, accordingly, Evans v-
Powis, 11 Jur. 1043.

4 Russell v. Lytle, 6 Wend. 390. But in this case, the decision of the
same Court in Coit v. Houston, many years before, was not cited or adverted
to, and the question was decided upon the earliest authorities. Yet, in sev-
eral of these, the reason why an accord without satisfaction is not binding, is

stated to be, that the plaintiff has no remedy upon the accord; thus tacitly
34 LAW OF EVIDENCE. [PART IV.

§ 32. If the defendant pleads payment and acceptance of
a sum of money in satisfaction, and the plaintiff replies,
traversing the acceptance in satisfaction, this puts both facts
in issue; and the defendant must therefore prove the pay-
ment, as well as the acceptance in satisfaction.!

§ 33. The plea of accord and satisfaction may often be
proved by the lapse of time and acquiescence of the parties.
Thus, it has been held, in an action upon a covenant against
incumbrances, that the lapse of twenty years after damages
sustained by the breach, unless rebutted by other evidence,
was sufficient proof of the plea.

 

seeming to admit that, where there is such remedy, the accord, with a tender
of satisfaction, is sufficient. 1 Roll. Abr. tit. Accord, pl. 11, 12,13; Allen
v. Harris, 1 Ld. Raym. 122; Brook. Abr. tit. Accord, &c., pl. 6; 16 Ed. 4,
8, pl. 6. So in Lynn v. Bruce, 2 H. Bl. 317. See, however, Hawley v.
Foote, 19 Wend. 516, where an agreement to accept a collateral thing in
satisfaction, with a tender and refusal, was held not a good bar. [Tilton v.
Alcott, 16 Barb. 598.] ‘
1 Ridley v. Tindall, 7 Ad. & El. 134.
2 Jenkins v. Hopkins, 9 Pick. 543.
PART IV.] ACCOUNT. 35

ACCOUNT.

§ 34. Tur remedy at Common Law, by the action of Ac-
count, has fallen into disuse in most of the United States;
suits by bill in Chancery, or by action of assumpsit, being re-
sorted to in its stead. It is, however, a legal remedy, where
not abolished by statute.

§ 35. This action lies at Common Law, between mer-
chants, naming them such, between whom there was privity ;
also against a guardian in socage by the heir; and against
bailiffs and receivers! And by statutes it lies between joint-
tenants and tenants in common, and their personal represen-
tatives; and by and against the executors and administrators
of those who were liable to this action.” But it does not lie
against an infant; nor against a wrongdoer, or any other
person where no privity exists 3

§ 36. Where the action is against one as receiver, it is neces-
sary to set forth by whose hands the defendant received the
money ; but where he is charged as bailiff it is not necessary.‘
It seems he may be charged in both capacities, in the same

 

1 Com. Dig. Accompt, A. B. [It does not lie in favor of one partner
against another who has received nothing, and has no account to render.
Spear v. Newell, 2 Paine, C. C. 267.]

213 Edw. 1,c. 23; 25 Edw. 3, c.5; 31 Edw. 3, c.11; 4& 5 Anne, c.16;
Sturton v. Richardson, 13 M. & W. 17.

3 Co. Lit. 172a; Harker v. Whitaker, 5 Watts, 474,

4 Co. Lit. 172a; Walker v. Holyday, 1 Com. R. 272; Bull. N. P. 127;
Bishop v. Eagle, 11 Mod. 186; Jordan v. Wilkins, 2 Wash. C. C. R. 482.
For, where the money was received of the plaintiff, the defendant might
have waged his law. Hodsden v. Harridge, 2 Saund. 65. Nor is it neces-
sary, where the action is between merchants. Moore v. Wilson, 2 Chipm.
91.
36 LAW OF EVIDENCE. [PART Iv.

action.!. But where one tenant in common sues his co-tenant
in account, charging him as bailiff, under the statute-of Anne,
it must be alleged in the declaration, and of course be proved,
that he has received more than his share of the profits.?

 

1 Wells v. Some, Cro. Car. 240; 1 Roll. Abr. 119, pl. 10; 1 Com. Dig.
Accompt, E. 2. The declaration against a bailiff, is as follows: “In a
.plea of account; for that the said D. was bailiff to the plaintiff of one mes-
suage, with the appurtenances in from to , and during that
time had the care and management thereof, and sufficient power to improve
and demise the same, and to collect and receive the issues, rents, and ‘profits

. of the said premises,to the use of the plaintiff; yet, though requested, the
said D. hath never rendered to the plaintiff his reasonable account of said
moneys, rents, and profits, nor of his doings in the premises, but refuses so
to do.” The form of charging one as receiver is thus: “for that the said D.
was from -*— to the plaintiff’s receiver, and as such bad received of
the moneys of the plaintiff by the hands of one KE. dollars, and by the
hands of one F. —— dollars, to render his reasonable account thereof on
demand. Yet,” &c., &c.

2 Sturton v. Richardson, 13 M. & W. 17. Whether a special request,
and the lapse of reasonable time should be alleged, quere. Ibid. [This
provision of the statute of Anne, (4 Anne, ch. 16, § 27, allowing an action
of account where one tenant in common has received more than his just
share,) applies only to cases where one tenant in common receives the
money or something else from another person to which both co-tenants are
entitled, simply by reason of their being tenants in common and in propor-
tion to their interest as such and of which the one receives and keeps more
than his just share according to that proportion. The statute, therefore, in-
cludes all cases where two are tenants of land leased to a third party at a
rent payable to each, and where the one receives the whole, or more than
his proportionate share according to his interest in the subject of the ten-
ancy. There is no difficulty in ascertaining the share of each, and deter-
mining when one has received more than his just share, and if he has, he
becomes as such receiver in that case the bailiff of the other, and must ac-
count. But when we seek to extend the meaning of the statute beyond the
ordinary meaning of its words, and to apply it to cases in which one has en-
joyed more of the benefit of the subject, or made more by its occupation
than the other, we have insuperable difficulties to encounter. There are
obviously many cases in which a tenant in common may occupy and enjoy
the land or other subject of tenancy in common solely, and have all the ad-
vantage to be derived from it, and yet it would be most unjust to make him
pay anything. And there are many cases where profits are made and are
actually taken by one co-tenant, yet it is impossible to say that he has re-
ceived more than comes to his just share. Examples of both classes of
cases are given. See Henderson v. Eason, 9 Eng. Law & Eq. R. 837.]

 

 

 

 

 
PART IV.] ACCOUNT. 37

And the receipt, by one co-tenant, of the whole profits, is,
primé facie, a receipt of more than his share, and will render
him liable to account to his companion, as bailiff, though, on
taking the account, it may turn out that he is a creditor! The
pleas in bar appropriate to this action, are, that he never was
bailiff; or guardian ; or receiver; or, that he has fully ac-
counted, either to the plaintiff; or before auditors ; or, that
the money was delivered to him for a specific purpose, which
has been accomplished.?, Whatever admits the defendant
once liable to account, such as payment over by the plain-
tiff’s order, &c., though it goes in discharge, should be
pleaded before the auditors, and not in bar of the action ;
excepting the pleas of release, plene computavit, and the stat-
ute of limitations.®

§ 37. In this case, as in other cases, the evidence on the part
of the plaintiff’ must support the material averments in the
declaration. There must be evidence of a privity, either by
contract, express or implied,> or by law; and if the defendant
is charged as bailiff, or guardian, or receiver, or tenant in com-
mon, or joint-tenant, he must be proved to have acted in the
specific character charged; for the measure of their liability
is different; tenants in common and joint-tenants being
answerable for what they have actually received, without

 

1 Eason v. Henderson, 12 Ad. & El. 986, N. 8.; 13 Jur. 150.

21 Com. Dig. Accompt, E. 3, 4, 5. In. these cases, the form of pleading
is: “That he never was bailiff of the premises, goods, and chattels afore-
said, to render an account thereof, to the said plaintiff in manner and form
(&e.) ”; or, “that he never was receiver of the moneys of the plaintiff in
manner (&c.) ”; or, “that after the time during which, (&c.) to wit, on —
he fully accounted with the plaintiff of and concerning the said premises,
rents, (&c.) for the time he was so bailiff as aforesaid ;” or, ‘‘ of and con-
cerning the moneys so by him received as aforesaid”; or, “ fully accounted
before A. and B., auditors assigned by the Court here to audit the account
aforesaid,” &c. Story’s Pleadings, 71, 72; 3 Chitty’s Pl. 1297-1299.

31 Com. Dig. Accompt, E. 6; Godfrey v. Saunders, 3 Wils. 94; Bredin
v. Divin, 2 Watts, 15.

4 An 10 U is evidence of an account stated between the parties. Fes-
senmayer v. Adcock, 16 M. & W. 449.

5 King of France v. Morris, cited 3 Yeates, 251; Co. Lit. 172 a.

VOL. I. 4

 
38 LAW OF EVIDENCE. [PART Iv.

deducting costs and expenses ; receivers being charged in the
same manner, but allowed costs and expenses in special
cases, in favor of trade; and guardians and bailiffs being held
to account for what they might, with proper diligence, have
received, deducting reasonable costs and expenses. The
property in the money demanded, or goods bailed, must be
precisely stated and proved as laid, it being a material alle-
gation. If, therefore, the declaration is for the money of the
plaintiff, and the proof is of money belonging to the plaintiff
and others as partners, the declaration is not supported?
And if there are several defendants, they must be proved to
be jointly and not severally liable A special demand to
account is not necessary to be proved.t

§ 38. If the plea is, that the defendant accounted before
two, it will be supported by evidence, that he accounted before
one of them only; for the accounting is the substance In
general, to support the plea of plene computavit, it is necessary
for the defendant to show a balance, ascertained and agreed
upon.® But if the course of dealing is such as to call for
daily accounts and payments by the defendant, as where the
demand is against a servant for the proceeds of daily petty
sales, of which it is not the course to take written vouchers,
it will be presumed that the defendant has accounted; and
the burden of proof will lie on the plaintiff to show that this
ordinary course of dealing has been violated.’ If the contract
was upon the consignment of goods to the defendant, that
he should account for the sales, and return the goods which

 

11 Selw. N. P. 1-3; Co. Lit. 172a; Sargent v. Parsons, 12 Mass. 149;
Griffith v. Willing, 3 Binn. 317; Wheeler v. Horne, Willes, 208; Jordan v.
Wilkins, 2 Wash. C. C. R. 482; Stat. 4 &5 Anne, c. 27; Irvine v. Hanlin,
108. & R. 221.

2 Jordan v. Wilkins, 2 Wash. C. C. R. 482.

3 Whelen v. Watmough, 15 8. & R. 158.

4 Sturges v. Bush, 6 Day, 442.

5 Bull. N. P. 127,

§ Baxter v. Hozier, 5 Bing. N. C. 288; [Closson v. Means, 40 Maine, 887 ;
McPherson v. McPherson, 11 Ired. 891; Lee v. Abrams, 12 Ill. 111.]

‘7 Evans v. Birch, 8 Campb. 10.
PART IY.] ACCOUNT. 39

should remain unsold, the plea of plene computavit will not
be maintained by evidence of having accounted for the sales,
unless it be also proved, that the goods unsold have been re-
turned! This plea, and that of ne wnques bailiff, &c., may
be pleaded together; and the plea does not in that case ad-
mit the liability of the defendant to account?

§ 39. After a judgment quod computet, and a reference to
auditors, all articles of account between the parties, incurred
since the commencement of the suit, are. to be included by
the auditors, and the whole is to be brought down to the
time when they make an end of the account? But after
such judgment, rendered upon confession against a receiver,
if the auditors certify issues to be tried, the plaintiff, upon
the trial of such issues, cannot give evidence of moneys re-
ceived by the defendant during any other period than that
described in the declaration The judgment quod computet,
however, does not conclude the defendant as to the precise
sums or times mentioned in the declaration ; but the account
is to be taken according to the truth of the matter, without
regard to the verdict.

 

1 Read v. Bertrand, 4 Wash. 556.

2 Whelen v. Watmough, 15 S. & R. 158.

3 Robinson v. Bland, 2 Burr. 1086; Couscher v. Toulam, 4 Wash. 442.
The report of the auditor will not be set aside on the ground of error in the
account, except on very clear and satisfactory proof of the errors complained
of. Stekman’s Appeal, 5 Barr, 413.

4 Sweigart v. Lowmarter, 14 S. & R. 200. [Nothing can be availed of
before the auditors contrary to w: at has been previously pleaded and found
by the verdict. Spear v. Newell, 2 Paine, C. C. 267; Lee v. Abrams, 12
Ill. 111.]

5 Newbold v. Sims, 2 8. & R. 317; James v. Brown, 1 Dall. 337; Sturges
v. Bush, 5 Day, 452.
40 LAW OF EVIDENCE. [PART IV.
e

ADULTERY.

§ 40. Tue proof of this crime is the same, whether the
issue arises in an indictment, a libel for divorce, or an action
on the case! The.nature of the evidence, which is considered
sufficient to establish the charge before any tribunal, has
been clearly expounded by Lord Stowell, and is best stated
in his own language. “It is a fundamental rule,” he observes,
“that it is not necessary to prove the direct fact of adultery;
because if it were otherwise, there is not one case in a hun-
dred in which that proof would be attainable; it is very
rarely, indeed, that the parties are surprised in the direct fact
of adultery. In every case, almost, the fact is inferred from
circumstances, that lead to it by fair inference as a necessary
conclusion; and unless this were the case, and unless this
were so held, no protection whatever could be given to marital
tights. What are the circumstances which lead to such a
conclusion, cannot be laid down universally, though many of
them, of a more obvious nature, and of more frequent occur-
rence, are to be found in the ancient books; at the same time,
it is impossible to indicate them universally; because they
may be infinitely diversified by the situation and character of
the parties, by the state of general manners, and by many
other incidental circumstances, apparently slight and delicate
in themselves, but which may have most important bearings
in decisions upon the particular case. The only general rule,
that can be laid down upon the subject, is, that the circum-
stances must be such as would lead the guarded discretion of

 

1 [It is thought that the rule of proof is different where the issue is raised
on an indictment and where it arises in a libel for divorce or an action on
the case. In an indictment, the act of adultery must be established by
proof beyond a reasonable doubt ; — in a libel for divorce, it is sufficient if
there be a preponderance of proof, as in civil cases. ]

°
PART Iv.] ADULTERY. 41

a reasonable and just man to the conclusion; for it is not to’
lead a rash and intemperate judgment, moving upon appear-
ances, that are equally capable of two interpretations, —
neither is it to be a matter of artificial reasoning, judging
upon such things differently from what would strike the care-
ful and cautious consideration of a discreet man. The facts
are not of a technical nature; they are facts determinable
upon common grounds of reason; and courts of justice would
wander very much from their proper office of giving protec-
tion to the rights of mankind, if they let themselves loose to
subtleties, and remote and artificial reasonings upon such
subjects. Upon such subjects the rational and the legal in-
terpretation must be the same.” 4

§ 41. The rule has been elsewhere more briefly stated to
require, that there be such proximate circumstances proved,
as by former decisions, or in their own nature and tendency,
satisfy the legal conviction of the Court, that the criminal

 

1 Loveden v. Loveden, 2 Hage. Con. R. 2,3. [See also the decision of
Shaw, C. J., in Dunham »v. Dunham, 6 Law Reporter, 141.] The husband’s
remedy against the seducer of his wife may be in trespass, or by an action
on the case. The latter is preferable, where there is any doubt whether
the fact of adultery can be proved, and there is a ground of action for en-
ticing away or harboring the wife without the husband’s consent ; because a
count for the latter offence may be joined with the former; and a count in
trover for wearing apparel, &c., may also be added. James v. Biddington,
6 C. & P. 589.

The declaration for seduction may be as follows: ‘ For that whereas the
defendant, contriving and wrongfully intending ‘to injure the plaintiff, and
to deprive him of the comfort, society, aid, and assistance of S., the wife of
the plaintiff, and to alienate and destroy her affection for him, heretofore, to
wit, on” [inserting the day .on or near which the first act of adultery’
can be proved to have been committed] “and on divers other days and
times after that day and before the commencement of this suit, wrongfully
and wickedly debauched and carnally knew the said S., she beirig then and
ever since the wife of the plaintiff; by means whereof the affection of the
said S. for the plaintiff was wholly alienated and destroyed ; and by reason
of the premises the plaintiff has wholly lost the comfort, society, aid, and
assistance of his said wife, which during all the time aforesaid he otherwise
might and ought to have had.” To the damage, &c.

4*

 
42 LAW OF EVIDENCE. |PART Iv.

act has been committed! And therefore it. has been held,
that general cohabitation excluded the necessity of proof of
particular facts Ordinarily, it is not necessary to prove the
fact to have been committed at any particular or certain time
or place. It will be sufficient, if the circumstances are such
as to lead the Court, travelling with every necessary caution,
to this conclusion; which it has often drawn between per-
sons living in the same house, though not seen in the same
bed, or in any equivocal situation. It will neither be misled
by equivocal appearances, on the one hand, nor, on the other,
will it suffer the object of the law to be eluded by any com-
bination of parties to keep without the reach of direct and
positive proof’ And in examining the proofs, they will not
be taken insulated and detached ; but the whole will be taken
togethert Yet, in order to infer adultery from general con-
duct, it seems necessary that a suspicio violenta should be
created.5 But the adulterous disposition of the parties being
once established, the crime may be inferred from their after-
wards being discovered together in a bed-chamber, under cir-
cumstances authorizing such inference.

§ 42. The nature of this crime has occasioned a slight
departure, at least in the Ecclesiastical Courts, from the gen-
eral rule of evidence as to matters of opinion; it being the
course to interrogate the witnesses, who speak of the behavior
of the parties, as to their impression and belief, whether the
crime has been committed or not. For it is said, that in
cases of this peculiar character, the Court, though it does not

 

1 Williams v. Williams, 1 Hage. Con. R. 299. [Dunham v. Dunham,
6 Law Reporter, 141.]

® Cadogan v. Cadogan, 2 Hagg. Con. R. 4, note; Rutton v. Rutton, Ib. 6,
note. ,

3 Burgess v. Burgess, 2 Hage. Con. R. 226, 227; Hammerton v. Ham-
merton, 2 Hagg. Eccl. R. 14; Rix v. Rix, 8 Hagg. Eccl. R. 74.

4 Durant v. Durant, 1 Hage. Eccl. R. 748.

5 Such seems to have been the view of Ld. Stowell in Loveden v. Love-
den, 2 Hagg. Con. R. 7, 8, 9, 16,17; and in Burgess v. Burgess, Ib. 227, 298.

§ Soilleaux v. Soilleaux, 1 Hagg. Con. R. 373; Van Epps v. Van Epps,
6 Barb. 8. C. R, 320, ;
PART Iv.] ADULTERY. 48

rely on the opinions of the witnesses, yet has a right to
know their impression and belief. On the other hand, in
the Ecclesiastical Courts, it is reluctantly held that the tes-
timony of one witness alone, though believed to be true, is
not legally sufficient to establish the charge of adultery.
But in the Courts of Common Law, in America, no such
rule is known to have been adopted, even in cases of an
Ecclesiastical nature?

§ 43. Where criminal intercourse is once shown, it must
be presumed, if the parties are stiil.living under the same
roof, that it still continues, notwithstanding those who dwell
under the same roof are not prepared to depose to that fact.‘
The circumstance, that witnesses hesitate and pause about
drawing that conclusion, will not prevent the Court, repre-
senting the law, from drawing the inference to which the
proximate acts proved, unavoidably lead.®

§ 44. Adultery of the wife may be proved by the birth of
a child, and non-access of the husband, he being out of the
realm ;° and if adultery is alleged to have been continued,
for many years, and with divers particular individuals, it is
sufficient to prove a few of the facts, with identity of her
person.’ Adultery of the husband, on the other hand, may
be proved by habits of adulterous intercourse, and by the
birth, maintenance, and acknowledgment of a child’ A
married man going into a known brothel, raises a suspicion
of adultery, to be rebutted only by the very best evidence?

 

1 Crewe v. Crewe, 3 Hage. Eccl. R. 128.

2 Evans v. Evans, 1 Rob. Eccl. R. 165; Simmons v. Simmons, 11 slats
830.

3 Ante, Vol. 1, § 260.

4 Turton v. Turton, 3 Hags. Eccl. R. 350; [Bishop on Marriage and
Divorce, § 442.]

5 Elwes v. Elwes, 1 Hage. Con. R. 278.

6 Richardson v. Richardson, 1 Hagg. Eccl. R. 6.

7 Ibid.

* D’Aguilar v. D’ Aguilar, 1 Hage. Eccl. R. 777, note.

® Astley ». Astley, 1 Hagg. Eccl. R. 720; Loveden v. Loveden, 2 Hagg.
Con. R. 24; Kenrick v. Kenrick, 4 Hage. Feel. R. 114, 124, 182.
44 LAW OF EVIDENCE. [PART Iv.

His going there, and remaining alone for some time in a
room with a common prostitute, is sufficient proof of the
crime. The circumstance of a woman going to such a
place with a man, furnishes similar proof of adultery? The
venereal disease, long after marriage, is primd facie evidence
of this crime.®

§ 45. As to proof by the confession of the party, no differ-
ence of principle is perceived between this crime and any
other. It has already been shown that a deliberate and vol-
untary confession of guilt is among the most weighty and
effectual proofs in the law.t Where the consequences of the
confession are altogether against the party confessing, there
is no difficulty in taking it as indubitable truth. But where
these consequences are more than counterbalanced by inci-
dental advantages, it is plain that they ought to be rejected.
In suits between husband and wife, where the -principal
object is separation, these countervailing advantages are
obvious, and the danger of collusion between the parties
is great. ‘This species of evidence, therefore, though not
inadmissible, is regarded in such cases with great distrust,
and is on all occasions to be most accurately weighed.6 And
it has been held, as the more rational doctrine, that confes-
sion, proved to the satisfaction of the Court to be perfectly
free from all suspicion of a collusive purpose, though it may
be sufficient to found a decree of divorce a mensé et thoro, is
not sufficient to authorize a divorce from the bonds of mat-
rimony, so as to enable a party to fly to other connections.
It is never admitted alone for this purpose ;7 nor must it be

 

1 Astley v. Astley, 1 Hagg. Eccl. R. 719.

2 Eliot v. Eliot, cited 1 Hagg. Con. R. 302; Williams v. Williams, Ib. 30.

3 Durant v. Durant, 1 Hagg. Eccl. R. 767; [Bishop on Marriage and
Divorce, § 427 et seq.]

4 Ante, Vol. 1, §*214-219 ; Mortimer v. Mortimer, 2 Hage. Con. R. 315;
[Bishop on Marriage and Divorce, ch. xvi.]

‘5 Williams v. Williams, 1 Hagg. Con. R. 304.

8 Mortimer v. Mortimer, 2 Hage. Con. R. 316.

7 Searle v. Price, 2 Hagg. Con. R. 189; Mortimer v. Mortimer, Ib. 316;
Betts v. Betts, 1 Johns. Ch. 197; Baxter v. Baxter, 1 Mass. 346; Holland
PART Iv.] ADULTERY. 45

ambiguous.) But it need not refer to any particular time or
place ; it will be applied to all times and places, at which it
appears probable, from the evidence, that the fact may have
been committed.2. And it is admissible, when made under
apprehension of death, though it be afterwards retracted?
Where, in cross libels for divorce a vinculo for adultery, each
respondent pleaded in recrimination of the other, it has been
held, that these pleas could not be received as mutual admis-
sions of the facts articulated in the libels* But the record
of the conviction of the respondent, upon a previous indict-
ment for that offence, has been held sufficient proof of the
libel, both as to the marriage, and the fact of adultery.

§ 46. The paramour is an admissible witness; but being
particeps criminis, his evidence is but weak. His confession
may be used in evidence against her, if connected with some
act of confession of her own, in the nature of a joint ac-
knowledgment; but independently and alone, it is inadmis-
sible.’

 

v. Holland, 2 Mass. 154; Doe v. Roe, 1 Johns. Cas. 25. But, where the
whole evidence was such as utterly to exclude all suspicion of collusion, and
to establish the contrary, a divorce has been decreed upon confession alone.
Vance v. Vance, 8 Greenl. 132; Owen v. Owen, 4 Hage. Eccl. R. 261.

1 Williams v. Williams, 1 Hage. Con. R. 304.

2 Burgess v. Burgess, 2 Hagg. Con. R. 227.

3 Mortimer v. Mortimer, 2 Hagg. Con. R. 317, 318.

4 Turner v. Turner, 3 Greenl. 398. :

5 Anderson v. Anderson, 4 Greenl. 100; Randall v. Randall, Ib. 326. The
conviction could not have been founded upon the testimony of the party
offering it in evidence.

6 Soilleaux v. Soilleaux, 1 Hagg. Con. R, 376; Croft v. Croft, 2 Hage.
Eccl. R. 318. ,

7 Burgess v. Burgess, 2 Hagg. Con. R. 235, note. [In an action on the
case, brought by a husband for criminal conversation with his wife, the lat-
ter, after a divorce from the bonds of matrimony, is a competent witness for
the plaintiff, to prove the charge in the declaration. Dickerman v. Graves,
6 Cush. 308. In Massachusetts, by statute, (Acts of 1857, c. 305,) in all
suits for divorce, except-those in which a divorce is sought on the ground of
alleged criminal conduct of either party, the parties may be permitted to
testify in their own favor, and may be called as witnesses by the opposite
party; but they shall not be allowed to testify as to private conversations
46 LAW OF EVIDENCE. [PART Iv.

§ 47. Where the fact of adultery is alleged to have been
committed within a limited period of time, it is not necessary
that the evidence be confined to that period; but proof of
acts anterior to the time alleged may be adduced, in expla-
nation of other acts of the like nature within that period.
Thus, where the statute of limitations was pleaded, the
plaintiff was permitted to begin with proof of acts of adul-
tery, committed more than six years preceding, as explana- .
tory of acts of indecent familiarity within the time alleged!
So, where one act of adultery was proved by a witness,
whose credibility the defendant attempted to impeach, evi-
dence of prior acts of improper familiarity between the par-
ties, has been held admissible to corroborate the witness.?
But, where the charge is of one act of adultery only, in a
single count, to which evidence has been given, the prose-
cutor is not permitted afterwards to introduce evidence of
other facts, committed at different times and places.’

§ 48. By the Common Law, the simple act of adultery is
not punishable by indictment, but is left to the cognizance
of the spiritual Courts alone. It is only the open lewdness
or public indecency of the act which is indictable But in
many of the United States, it is now made indictable, by
statutes. Whether, to constitute this crime, it is necessary
that both the guilty parties be married persons, is a point

 

with each other. Under the English statute allowing a wife to testify for or
against her husband, she may, in an action against the husband, for neces-
saries supplied to her, testify to her own adultery. Cooper v. Lloyd, 6 Com.
B. Rep. N.S. 519.]

1 Duke of Norfolk v. Germaine, 12 Howell’s St. Tr. 929, 945. It has
however, been held, that the proof of acts within the period must first be
adduced. Gardiner v. Madeira, 2 Yeates, 466.

2 Commonwealth v. Meriam, 14 Pick. 518.

3 Sante v. Pricket, 1 Campb. 473 ; Downes v. Skrymsher, 1 Brownl. 233;
19 H. 6,47; The State v. Bates, 10 Conn. 372; [Commonwealth v. Horton,
2 Gray, 354.]

44 BI. Comm. 64, 65; Anderson v. The Commonwealth, 6 Rand. 627;
The State v. Brunson, 2 Bayley, R. 149; The Commonwealth v. Isaaks,
5 Rand. 634.
PART IV.] ADULTERY. AT

not perfectly agreed by authorities ;1 but the better opinion
seems to be, that the act of criminal intercourse, where only
one of the parties is married, is adultery in that one, and
fornication in the other.2 Some of the statutes, upon a
divorce a vineulo, for adultery, disable the guilty party from
contracting a lawful marriage, during the life of the other;
but it has been held, that a second marriage does not, in
such case, render the party guilty of the crime of adultery ;
but only exposes to a prosecution under the particular pro-
visions of the statute, whatever they may be.® And if such
second marriage is had in another State, where it is not
unlawful, the parties may lawfully cohabit in either State.

§ 49. Upon every charge of adultery, whether in an indict-
ment or a civil action, the case for the prosecution is not
made out without evidence of the marriage. And it must be
proof of an actual marriage, in opposition to proof by cohab-
itation, reputation, and other circumstances, from which a
marriage may be inferred, and which, in these cases, are held
insufficient ; for otherwise persons might be charged upon
pretended marriages set up for bad purposes.6 Whether the
defendant's admission of the marriage may be given in evi-
dence against him has been doubted; but no good reason
has been given to distinguish this fom. other cases of admis-

 

¥

1 The State v. Pierce, 2 Blackf. 318; Respublica v. Roberts, 2 Dall. 124;
1 Yeates, 6.

2 Bouvier’s Law Dict. verb. Adultery. Hull v. Hull, 2 Strobh. Eq. 174.
In The State v. Wallace, 9 N. Hamp. 515, it was held, that adultery was
committed whenever there was unlawful intercourse, from which spurious
issue might arise; and that therefore it was committed by an unmarried
man, by illicit connection with a married woman. [See also Commonwealth
v. Call, 21 Pick. 509.]

3 Commonwealth v. Putnam, 1 Pick. 136.

4 Putnam v. Putnam, 8 Pick. 4338.

5 Morris v. Miller, 4 Burr. 2059, expounded in T Doug. 174. In a libel
for divorce, the Court: will require proof of the marriage, even though the
party accused makes default of appearance. Williams v. Williams, 3 Greenl.
135. In Massachusetts, in a libel for divorce, the marriage may be proved
by any circumstantial evidence, competent to prove it in civil causes in 'gen-
eral. Stat. 1840, ch. 84.
48 LAW OF EVIDENCE. [PART Iv.

sion, where, as we have already shown,! the evidence may be
received, though it may not amount to sufficient proof of the
fact. Thus, in a civil action for adultery, where the defend-
ant, being asked where the plaintiff’s wife was, replied, that
she was in the next room, this was held insufficient to prove
a marriage, for it amounted only to an admission, that she
was reputed to be his wife But any recognition of a per-
son standing in a given relation to others, is primd facie
evidence, against the person making such recognition, that
such relation exists ;? and if the defendant has seriously and
solemnly admitted the marriage, it will be received as suffi-
cient proof of the fact. Thus, where the defendant delib-
erately declared, that he knew that the female was married
to the plaintiff, and that with full knowledge of that fact he
had seduced and debauched her, this was held sufficient
proof of the marriage#

§ 50. In indictments, and actions for criminal conversa-
tion, as the prosecution is against a wrongdoer, and not a
claim of right, it is sufficient to prove the marriage according
to any form of religion, as Jews, Quakers, and the like.6 The
evidence on this head will be treated hereafter, under the
appropriate title. But in whatever mode the marriage was
celebrated or is proved, there must be satisfactory proof of
the identity of the parties.’

§ 51. In defence of a libel for divorce, or of an action for

 

1 Ante, Vol. 1, § 209. [Cook v. The State, 11 Geo. 53; Cameron v. The
State, 14 Ala. 546] In an indictment for adultery, where the defendant
was married in a foreign country, his admission of that fact has been held
sufficient proof of the marriage. Cayford’s case, 7 Greenl. 57; Regina vu.
Simmonsto, 1 Car. & Kirw. 164,58. P. Infra, tit. MarriaGce.

2 Bull. N. P. 28.

3 Dickenson v Coward, 1 B. & Ald. 679, per Ld. Ellenborough.

4 Rigg v. Curgenven, 2 Wils. 399.

5 Forney v. Hallacher, 8 S. & R. 159.

6 Bull. N. P. 28. But it must be actually, and not merely prima facie a
valid marriage, according to the law under which it was celebrated. Cather- -
wood v. Caslon, 138 M. & W. 261.

7 See infra, tit. MARRIAGE.
PART Iv.] ADULTERY. 49

criminal conversation, it may be shown that the adultery was
committed, or the act of apparent criminality was done, by
collusion between the parties, for the purpose of obtaining a
separation, or of supporting an action at law. For the law
permits no such codperation, and refuses a remedy for adul-
tery committed with such intent. But the non-appearance
of the wife, and a judgment by default against the paramour,
are held no proof of collusion.? Passive sufferance or con-
nivance of the husband, may also be shown in bar, both of
a libel and a civil action. But mere negligence, inattention,
confidence, or dulness of apprehension, are not sufficient for
this purpose; there must be passive acquiescence and con-
sent, with the intention and in the expectation that guilt will
follow The proof, from the nature of the case, may be
made out by a train of conduct and circumstances; but it is
not necessary to show tonnivance at actual adultery, any
more than it is necessary to prove an actual and specific fact
of adultery; for if a system of connivance at improper famil-
iarity, almost amounting to proximate acts, be established,
the Court will infer a corrupt intent as to the result. But if
tlie evidence falls short of actual connivance, and only estab-
lishes negligence, or even loose and improper conduct in the
husband, not amounting to consent, it is no bar to an action
for criminal conversation, but goes only in reduction of the
damages.> It is not always necessary, that the husband be
proved to have connived at the particular acts of adultery
charged ; for if he suffers his wife to live as a prostitute, and
criminal intercourse with a third person ensues, he can have
no action; it is damnum absque injuria. Nor will an action

 

\ Crewe v. Crewe, 8 Hagg. Eccl. R. 128, 140. [Bishop on Marriage and
Divorce, ch. xviii. ] 2 Thid.

3 Rogers v. Rogers, 3 Hagg. Eccl. R. 58; ‘Timmings v. Timmings, Ib. 76;
Lovering v. Lovering, Ib. 85; Pierce v. Fierce, 3 Pick. 299; Duberley v.
Gunning, 4 T. R. 655; Bull. N. P. 27; Hodges v. Windham, Peake’s Cas.
49; 1 Selw. N. P. 8, 9, (10th ed.)

4 Moorsum v. Moorsum, 3 Hagg. Eccl. R. 95.

5 Foley v. Ld. Peterborough, 4 Doug. 294; Duberley v. Gunning, 4 T. R.
655.

6 Smith v. Alison, Bull. N. P. 27, per Ld. Mansfield ; Sanborn v. Neilson,

VOL. II. 5
50 LAW OF EVIDENCE. [PART Iv.

lie for criminal conversation, had after the husband and wife
have separated by articles of agreement, and the husband
has released all claim to the person of his wife; for the gist
of this action is the loss of the comfort, society, and assist-
ance of the wife.!

i

§ 52. Recrimination is also a good defence to a libel for
divorce ;? though it is no bar to an action for criminal con-
versation.2 The principle on which this plea of compensatio
criminis is allowed, is, that the party cannot justly complain
of the breach of a contract which he has himself violated.‘
This plea may be sustained on evidence, not as strong as
might be necessary to sustain a suit for adultery ;5 and it
makes no difference whether the offence, pleaded by way
of compensation, were committed before or after the fact
charged in the libel. It has been questioned whether a
single act of adultery is sufficient to support this plea,

 

4 .N. Hamp. 591. Ifthe husband connive at adultéry with A., he cannot
have a divorce for an act of adultery, nearly contemporaneous, with B.
Lovering v. Lovering, 3 Hagg. Eccl. R. 85.

1 Weedon v. Timbrell, 5 T. R. 357; Chambers v. Cauldfield, 6 East, 244;
Winter v. Henn, 4 C. & P. 494; Bartelot v. Hawker, Peake’s Cas. 7; Wil-
ton v. Webster, 7 C. & P. 198; Harvey v. Watson, 7M. & G. 644. Butif
the separation was without any relinquishment by the husband of his right
to the society of the wife, so that a suit for restitution of conjugal rights is
still maintainable, it is no bar. Graham v. Wigley, 2 Roper on Husb. &
Wife, 323, n. Some of the earlier cases seem to favor the idea that if the
separation was by deed, the action would not lie ; but this notion is not now
favored, the true question being, whether the husband has or has not re-
leased his right to her person and society.

2 Beeby v. Beeby, 1 Hagg. Eccl. R. 789; Forster v. Forster, 1 Hagg. Con.
R. 144. Cruelty is no answer to a charge of adultery; but it is pleadable
together with a counter charge of adultery. Coxedge v. Coxedge, 8 Jur.
935. [Bishop on Marriage and Divorce, ch. xx.]

3 Bromley v. Wallace, 4 Esp. 237. It goes only to the damages, in the
civil action; though Ld. Kenyon formerly held it good in bar. Wyndham
v. Wycombe, 4 Esp. 16.

4 Beeby v. Beeby, 1 Hagg. Eccl. R. 789; Forster v. Forster, 1 Hagg.
Con. R. 153.

5 Forster v. Forster, supra; Astley v. Astley, 1 Hagg. Eccl. R. 714, 721.

8 Proctor v. Proctor, 2 Hagg. Con. R. 299; Astley v. Astley, supra. If
PART IV.] ADULTERY. 51.

against a series of adulteries proved on the other side; but
the better opinion seems to be that it is.

§ 53. Condonation is a sufficient answer to the charge of
adultery, in a libel; but it does not follow that it is a good
answer to a recriminatory plea ; for circumstances may take
off the effect of condonation, which would not support an
original suit for the same cause2 ‘Thus, facts of cruelty will
revive a charge of adultery, though they would not support
an original suit for it.2 Condonation is forgiveness, with an
implied condition, that the injury shall not be repeated, and
that the party shall be treated with conjugal kindness; and
on breach of this condition, the right to a remedy for former
injuries revives.t It must be free; for if obtained by force
and violence, it is not binding ; and if made upon an express
condition, the condition must be fulfilled.® It must also ap-
pear that the injured party had full knowledge, or, at least,
an undoubting belief of all the adulterous connection, and
that there was a condonation subsequent to that knowledge.®

§ 54. Where the parties have separate beds, there must, in
order to show condonation, be some evidence of matrimonial
connection, beyond mere dwelling under the same roof.’ But
if a wife overlooks one act of human infirmity in the hus-

 

the act pleaded by way of recrimination has been forgiven, the condonation
is a sufficient answer to the plea. Anichini v. Anichini, 2° Curt. 210.

1 Astley v. Astley, 1 Hagg. Eccl. R. 722-724; Naylor v. Naylor, Ib. cit.;
Brisco v. Brisco, 2 Addams, R. 259.

2 Beeby v. Beeby, supra; D’Aguilar v. D’ Aguilar, 1 Hagg. Eccl. R. 782;
[Bishop on Marriage and Divorce, ch. xix.]

3 bid.

4 Durant v. Durant, 1 Hagg. Eccl. R. 761; Ferrers v. Ferrers, 1 Hage.
Con. R. 130.

5 Popkin v. Popkin, 1 Hagg. Eccl. R. 767, note.

6 Turton v. Turton, 3 Hagg. Eccl. R. 351; Anon. 6 Mass. 147; Perkins
v. Perkins, Ib. 69; North v. North, 5 Mass. 320; Backus v. Backus, 3
Greenl. 136.

7 Beeby v. Beeby, 1 Hage. Eccl. R. 794; Westmeath v. Westmeath, 2
Hagg. Eccl. R. 118, Supt.
52 LAW OF EVIDENCE. [PART IV.

band, it is not a legal consequence, that she pardons all oth-
ers. It is not necessary for her to withdraw from cohabita-
tion on the first or second instance of misconduct; on the
contrary, it is legal and meritorious for her to be patient as
long as possible; forbearance does not weaken her title to
relief, especially where she has a large family, and endures
in the hope of reclaiming her husband. But, on the other
hand, the situation and circumstances of the husband do not
usually call for such forbearance ; and a facility of condona-
tion of adultery on his part leads to the inference that he
does not duly estimate the injury ; and if he is once in pos-
session of the fact of adultery, and still continues cohabita-
tion, it is proof of connivance and collusion.? In either case,
to establish a condonation, knowledge of the crime must be
clearly and distinctly proved.

 

1 D’Aguilar v. D’Aguilar, 1 Hagg. Eccl. R. 786; Durant v. Durant, Ib.
752, 768; Beeby v. Beeby, 1 Hagg. Eccl. R. 793; Turton v. Turton, 3
Hagg. Eccl. R. 351.

2 Timmings v. Timmings, 3 Hagg. Eccl. R. 78; Dunn v. Dunn, 2 Phill.
411.

3 Durant v. Durant, 1 Hagg. Eccl. R. 733. [It has sometimes been sup-
posed that the doctrine of condonation arising from continued cohabitation,
was inapplicable to cases of libel by the wife, seeking a divorce for extreme
cruelty. The cases of Perkins v. Perkins, 6 Mass. 69, and Hollister v. Hol-
lister, 6 Barr. 449, are to that effect. But the better established rule seems
to be that cruelty, as well as adultery, may be the subject of condonation.
Burr v. Burr, 10 Paige, 20; Whispell v. Whispell, 4 Barb. 217; Masten v.
Masten, 15 N. H. 159; Bishop on Mar. & Div. § 369, and cases cited. The
English cases are to the like effect. But Dr. Lushington, in Snow v. Snow,
2 Notes of Cases, Supp. 15, says that the two offences of adultery and cruelty
are so distinct in their nature, that the same considerations cannot be equally
applicable to both, as respects condonation.” Gardner v. Gardner, 2 Gray,
434, Cohabitation for a single night, immediately succeeding a series of
acts of cruelty by a husband towards his wife, is not such a condonation as
will bar a libel by the wife for a divorce from bed and board for extreme
cruelty, if the husband, by the violence of his subsequent conduct, cause a
reasonable apprehension in her mind, that she can no longer cohabit with
him, without imminent danger of suffering extreme cruelty from his assaults ;
and such subsequent violent conduct revives the right of the wife to proceed
for the original cause for the divorce, and effectually bars the defence of
condonation. — Ibid.
PART Iv.] ADULTERY. 53

§ 55. In proof of damages on the part of the plaintiff, in a
civil action for adultery, evidence is admissible, showing the
state of domestic happiness in which he and his wife had
previously lived; and a marriage settlement, or other pro-
vision, if any, for the children of the marriage;! the rela-
tions, whether of friendship, blood, confidence, gratitude,
hospitality, or the like, which subsisted between him and the
defendant;* and the circumstances attendant upon the inter-
course of the parties? But it seems, that evidence of the
defendant’s property cannot be given in chief, in order to
acquire damages, the true question being, not how much
money the defendant is able to pay, but how much damage
the plaintiff has sustained. The state of the affections and
feelings entertained by the husband and wife towards each
other, prior to the adulterous intercourse, nay be shown by
their previous conversations, deportment, and letters;® and
the language and letters of the wife, addressed to other per-
sons, have been received as evidence for the same object.o |
Conversations, also, and letters, between the wife and the
defendant, and a draft of a letter from her to a friend, in the
defendant’s handwriting, have been admitted in evidence
against him.” But her confessions, alone, when not a part
of the res geste, are not admissible.’ If the wife dies, pend-
ing the suit, the husband is still entitled to damages for the

 

! Bull. N. P. 27; 1 Stephen’s N. P. 24. It has been said, that the rank
and circumstances of the plaintiff may be given in evidence by him; but
this has been denied; for the character of the husband is not in issue, except
merely as far as that relation isconcerned. Norton v. Warner, 6 Conn. 172.

2 Tbid.

3 Duke of Norfolk v. Germaine, 12 How. State Tr. 927.

4 James v. Biddington, 6 C. & P. 589. But in an action for breach of
promise to marry, such ¢vidence is material, as showing what would have
been the station of the plaintiff in society, if the defendant had not broken
his promise. Ibid. See infra, § 267.

5 Ante, Vol. 1, § 102.

6 Ante, Vol. 1, § 102; Jones v. Thompson, 6 C. & P.415. Even though
the letters contain other facts, which of themselves could not properly be
submitted to the Jury. Willis v. Berndrd, 8 Bing. 376.

‘7 Baker v. Morley, Bull. N. P. 28; Wilton v. Webster, 7 C. & P. 198.

8 Ibid. ; Aveson v. Ld. Kinnaird, 6 Hast, 188; Walter v. Green, 1 C. &
P. 621; Winsmore v. Greenbank, Willes, 577.

5*
54 LAW OF EVIDENCE. [PART Iv.

shock which has been given to his feelings, and for the loss
of the society of the wife, down to the time of her death;
and this, though he was unaware of his own dishonor, until
it was disclosed to him by the wife, upon her death-bed.!

§ 56. As the husband, by bringing the action, puts the
wife’s character in issue, the defendant may show, in what is
called mitigation of damages, the previous bad character and
conduct of the wife, whether in general, or in particular in-
stances of unchastity ;® her letters to and deportment towards
himself, tending to prove, that she made the first advances ;*
the husband’s connivance at the adulterous intercourse ;* his
criminal connection with other women ;° the bad terms on
which he previously lived with his wife; his improper treat-
ment of her; his gross negligence and inattention in regard
to her conduct with respect to the defendant; and any other
facts tending to show either the little intrinsic value of het
society, or the light estimation in which he held it.’ The
evidence produced by the husband to show the harmony pre-
viously subsisting between him and his wife, may be rebutted
by evidence of her declarations, prior to the criminal inter-
course, complaining of his ill treatment; and general evidence
of similar complaints may be also given in reduction of
damages. But no evidence of the misconduct of the wife
subsequent to her connection with the defendant, can; be
received.®

 

1 Wilton v. Winsmore, 7 C. & P. 198, per Coleridge, J.

2 See infra, tit. DAMAGES, § 265-267.

3 Bull. N. P. 296; Ibid. 27; Hodges ». Windman, Peake’s Cas. 39;
Gardiner v. Jadis, 1 Selw. N. P. 24; Ante, Vol. 1, § 54.

4 Elsam v. Fawcett, 2 Esp. 562.

5 1 Steph. N. P. 26; Supra, § 51; 1 Selw. N. P. 23, 24. The represen-
tation made by his ee to her husband, on the eve of her elopement, is ad-
missible, as part of the res geste, to repel the imputation of connivance.
Hoare v. Allen, 8 Esp. 276.

6 Bromley v. Wallace, 4 Esp. 237.

7 Trelawney v. Coleman, 2 Stark. R. 191; 1 B. & Ald. 90; Jones v.
Thompson, 6 C. & P. 415; Winter v. Wroot, 1 M. & Rob. 404.

8 Winter v. Wroot, 1 M. & Rob. 404.

9 Elsam v. Faweett, 2 Esp. 562.
PART Iv.] ADULTERY. 55

§ 57. The letters of the wife, in order to be admitted in
favor of the husband, must have ‘been written before any
attempt at adulterous intercourse had been made by the
defendant! And whenever her letters are introduced as
expressive of her feelings, they must have been of a period
anterior to the existence of any facts, tending to raise sus-
picions of her misconduct, and when there existed no ground
to impute collusion? But in all these cases, the time when
the letters were written must be accurately shown; the dates
not being sufficient for this purpose, though the postmarks
may suffice?

§ 58. Though the general character of the wife is in issue
in this action, the plaintiff cannot go into general evidence
in support of it, until it has been impeached by evidence on
the part of the defendant, either in cross-examination, or in
chief; but whether the plaintiff can rebut the proof of par-
ticular instances of misconduct, by proof of general good
character, may be doubted; and the weight of authority
seems against its admivcion:

 

1 Wilton v. Webster, 7 C. & P. 198.

2 Edwards v. Crock, 4 Esq. 39.

8 Edwards v. Crock, 4 Esp. 39; 1 Steph. N. P. 27.

4 Bamfield v. Massey, 1 Campb. 460; Dodd v. Norris, 3 Campb. 519;
Doe dem. Farr v. Hicks, Bull. N. P. 296; 4 Esp. 51, 8. C.; Stephenson v.
Walker, 4 Esp. 50, 51; Bate v. Hill, 1 C. &P, 100; Anie, Vol. 1, $5 54, 55;
1 Steph. N. P, 26.
56 LAW OF EVIDENCE. [PART Iv.

AGENCY.

§ 59. An agent is one who acts in the place and stead of
another. The act done, if lawful, is considered as the act of
the principal. It is not always necessary that the authority
should precede the act; it may become in law the act of the
principal, by his subsequent ratification and adoption of it.
The vital principle of the law of agency lies in the legal
identity of the agent and the principal, created by their mu-
tual consent... If the agent does an act within the scope of
his authority, and at the same time does something more
which he was not authorized to do, and the two matters are
not so connected as to be inseparable, even though both may
relate to the same subject; that which he had authority to
do, is alone binding, and the other is void?

§60. The evidence of agency is either direct or indirect.
Agency is directly proved by express words of appointment,
whether orally uttered or contained in some deed or other

fwriting. It is indirectly established by evidence of the rela-

‘stive situation of the parties, or of their habit and course of
i dealing and intercourse, or it is deduced from the nature of
the employment, or from subsequent ratification?

§ 61. As a general rule, it may be laid down, that the au-
thority of an agent may be proved by parol evidence, that is,
either by words spoken, or by any writing not under seal, or
by acts and implications.* But to this rule there are some

 

1 Maclean v. Dunn, 4 Bing. 722; Story on Agency, § 239-260,

2 Hammond v. Michigan State Bank, 1 Walker, Ch. R. 214.

3 Story on Agency, § 45; 2 Kent, Comm. 612, 613; Paley on Agency,
p- 2.

4 Story on Agency, § 47; 3 Chitty on Comm. & Man. p. 5; Coles v.
Trecothick, 9 Ves. 250. [Drumright v. Philpot, 16 Geo. 424. If an agency
be proved, and there is no evidence that it was a limited agency, the pre-
sumption is that it was a general agency. Methuen Co. v. Hayes, 38
Maine, (8 Red.) 169.]
PART Iv.] ' AGENCY. 5T

exceptions. ‘Thus, whenever an act is required to be done
under seal, the authority of the agent to do it must also be
proved by an instrument under seal. A writing without seal
will not be sufficient at law to give validity to a deed, though
a Court of Equity might, in such case, compel the principal
to confirm and ratify the deed! The principle of this excep-
tion, however, is not entirely followed out in the Common
Law ; for an authority to sign or indorse promissory notes
may be proved by mere oral communications, or by implica-
tion;? and. even where the Statute of Frauds requires an
agreement to be in writing, the authority of an agent to
sign it may be verbally conferred.

§ 62. Where a corporation aggregate is the principal, it
was formerly held, that the authority of its agent gould be
proved only by deed, under the seal of the corporation. But
this rule is now very much relaxed both in England and
America; and however necessary it still may be to produce
some act under the corporate seal, as evidence of the author-
ity of a special agent, constituted immediately by the corpo-
ration, to transact business affecting its essential and vital
interests ; yet, in all matters of daily necessity, within the
ordinary powers of its officers, or touching its ordinary opera-
tions, the authority of its agents may be proved as in the

 

1 Story on Agency, § 49; Harrison v. Jackson, 7 T. R. 207; Paley on
Agency, by Lloyd, 157, 158. If the deed is executed in the presence of
the principal, no other authority is necessary. Story on Agency, § 51.
[Baker v. Freeman, 35 Maine, 485. Where a statute makes it indispensa-
ble to a good conveyance of land that the deed shall be witnessed by two
subscribing witnesses, a power of attorney to convey lands under such stat-
ute is not good, unless witnessed by two subscribing witnesses. Gage v.
Gage, 10 Foster, (N. H.) 420.

2 Story on Agency, § 50.

3 Maclean v. Dunn, 4 Bing. 722; Coles v. Trecothick, 9 Ves. 250; Paley
on Agency, by Lloyd, 158-161; Emmerson v. Heelis, 2 Taunt, 48; Story
on Agency, § 50. [If an instrument, executed by an agent, be one which,
without seal, would bind the principal, it will bind him, if it be under seal.
Wood v. Auburn and Rochester R. R. Co. 4 Selden, (N. Y.) 160. See
Wheeler v. Nevins, 34 Maine, (4 Red.) 54.
58 LAW OF EVIDENCE. [PART Iv.

case of private persons.!. And where a deed is signed by one
as the agent of a corporation, if the seal of the corporation is
affixed thereto, it will be presumed, in the absence of con-
tradictory evidence, that the agent was duly authorized to
make the conveyance.”

§ 63. If the authority of the agent is in writing, the writing
must be produced and proved ; and if, from the nature of the
transaction, the authority must have been in writing, parol
testimony will not be admissible to prove it, unless as sec-
ondary evidence, after proof of the loss of the original.’
Where the authority was verbally conferred, the agent him-
self is a competent witness to prove it; 4 but his declarations,
when they are no part of the res geste, are inadmissible.

§ 64. Where the agency is inferred from the relative situ-
ation of the parties, it is generally sufficient to establish the
fact, that the relationship in question was actually created ;
and this must be proved by the kind of evidence appropriate

 

1 Story on Agency, § 53; East London Waterworks Co. v. Bailey, 4 Bing.
283; Bank of Columbia v. Patterson, 7 Cranch, 299-305; Smith v. The
Birmingham Gas-Light Co. 1 Ad. & El. 526; Bank of the United States v,
Dandridge, 12 Wheat. 67-75; Randal v. Van Vetchen, 19 Johns. 60;
Dunn v. St. Andrew’s Church, 14 Johns. 118; Perkins v. The Washington
Ins. Co. 4 Cow. 645; Troy Turnp. Co. M’Chesney, 21 Wend. 296; An-
gell & Ames on Corp. 152, 153; Rex v. Bigg, 3 P. Wms. 427. [Melledge
v. Boston Iron Co. 5 Cush. 179; Narragansett Bank v. Atlantic Silk Co.
3 Met. 282. Where no one is specially authorized by any statute, or by
the by-laws, to call meetings of a trading corporation, in the absence of any
special authority, it is competent for the general agent of such corporation
to notify meetings when, in his judgment, the interest and business of the
corporation require it. Stebbins v. Merritt, 10 Cush. 33.]

2 Flint v. Clinton Co. 12 N. Hamp. 430.

3 Ante, Vol. 1, §§ 86, 87, 88; Johnson v. Mason, 1 Esp. 89.

4 Ante, Vol. 1, §§ 416, 417, and cases there cited; [Gould v. Norfolk
Lead Co. 9 Cush. 352; Downer v. Button, 6 Foster, (N. H.) 338.]

5 Ante, Vol. 1, § 113; Clark v. Baker, 2 Whart. 840. [And such decla-
rations, although accompanied by acts, are not admissible in a suit by a third
person against the principal, to prove the extent of the agent’s authority.
Brigham v. Peters, 1 Gray, 139.]
PART Iv.] AGENCY. 59

to the case. Thus, where the sheriff was sued for the wrong-
ful act of a bailiff, it was held not enough to prove him a
general bailiff, by official acts done by him as such; but
proof was required of the original warrant of execution,
directed by the sheriff to the bailiff, which is the only source
of a bailiff’s authority, he not being the general officer of
the sheriff If the relation is one which may be created by
parol, it may be shown by evidence of the servant or agent,
acting in that relation with the knowledge and acquiescence
of the principal, whether express or implied?

4 ° 4

§64 a. The mere existence of the relation, however,
establishes an agency no farther than is necessary for the
discharge of the duties ordinarily belonging to it. Thus, the
actual command of a ship, as master, renders the owner
chargeable only for all such acts as are done by the master in
the ordinary course of hisemployment.? But the marital rela-
tion alone will not render a husband liable, by raising a pre-
sumption of agency in the wife, where her orders for goods
are of an extravagant nature, disproportionate to the hus-
band’s apparent ability.‘

 

1 Drake v. Sykes, 7 T. R. 118.

2 Price v. Marsh, 1 C. & P. 60; Rex v. Almon, 5 Burr. 2686; Garth v.
Howard, 5 C. & P. 846; 8 Bing. 451, 8. C.; Story on Agency, § 55; White
v. Edgman, 1 Overton’s Tenn. R, 19.

3 Story on Agency, § 116-123; Abbott on Shipping, Part II. ch. 2, 3.
[Rogers v. McCune, 19 Mis. (4 Bennet,) 557. The master of a ship has no
general authority as such to sign a bill of lading for goods which are not put
on board the vessel, and if he does so, the owners are not responsible there-
for. Grant v. Norway, 2 Eng. Law and Eq. R. 337; Hubbersty v. Ward, 18
Ib. 551; Coleman v. Riches, 29 Ib. 323.]

4 Lane v. Ironmonger, 1 New Pr. Cas. 105; Freestone v. Butcher, 9 C.
& P. 648. [A general selling agent is authorized to sell goods in the usual
manner, and only in the usual manner in which goods or things of that sort
are sold. Shaw v. Stone, 1 Cush. 228. But such agent has no implied au-
thority to bind his principals by a special warranty; as that flour sold by him
on their account will keep sweet during a sea-voyage, in the absence of any
business usage to that effect. Upton v. Suffolk County Mills, 11 Ib. 586.
See also Nash v. Drew, 5 Cush. 422. But see Ezell v. Franklin, 2 Sneed,
(Tenn.) 236. An agent to purchase has authority to make representations
60 LAW OF EVIDENCE. [PART IV.

§ 65. The most numerous class of cases of agency is that
which relates to affairs of trade and commerce, where the
agency is proved by inference from the habit and course of

) dealing between the parties. This may be such as either

to show, that there must have been an original appointment,
or a subsequent and continued ratification of the acts done ;
but in either case the principal is equally bound. Having
himself recognized another as his agent, factor, or servant,
by adopting and ratifying his acts done in that capacity, the
principal is not permitted to deny the relation to the injury

as to the solvency of his principal. Hunter v. Hudson River Iron and Ma-
chine Co. 20 Barb. 493.

An authority to sell and convey lands for cash, confers on the agent the
right to receive the purchase-money. Johnson v. McGruder, 15 Mis. 365.
A letter of attorney, which authorizes an agent to purchase goods belonging
to A. and others, and draw such bills as should be agreed on between him
and A., does not authorize the purchase of such goods from other persons.
Peckham v. Lyon, 4 McLean, 45. An agent employed to buy and sell has
no authority to bind his principal by a negotiable note given for goods
bought, unless the giving of such note be indispensable to carrying on the
business in which he is employed. Temple v. Pomroy et al. 4 Gray, 128.

Where the agent of a wharfinger whose duty it was to give, receipts for
goods actually received at the wharf, fraudulently gave a receipt for goods
which had not been received, the principal was not: bound, as it was not
within the scope of the agent’s authority, in the course of his employment,
to give such receipt. Coleman v. Riches, 29 Eng, Law & Eq. R. 323.

The delivery of an account to an agent to collect, confers no authority to
settle it in any other mode; and if the agent exceeds his authority, the prin-
cipal does not ratify his act by neglecting to give notice that he repudiates it.
Powell v. Henry, 27 Ala. 612; Kirk v. Hiatt, 2 Carter, (Ind.) 322. Author-
ity to an agent to “ settle,” is not authority to submit to arbitration. Huber
v. Zimmerman, 21 Ala. 488.

A general agent of an insurance company binds his principal, although he
departs from his instructions; unless those with whom he is dealing have
notice that he is transgressing his authority. N. Y. Central Ins. Co. v. National
Pro. Ins. Co. 20 Barb. 468; Hunter v. Hudson River J. & M. Co. Ib. 493.
See also Barber v. Britton, 26 Vt. (3 Deane,) 112; Linsley v. Lovely, Ib.
123; Chouteaux v. Leech, 18 Penn. State R. (6 Harris,) 224. But the
authority of an agent, however general, if capable of being executed ina
lawful manner, is never to be extended by construction to acts prohibited
by law, so as to render his innocent principal liable in a criminal prosecu-
tion, Clark v. Metropolitan Bank, 8 Duer, (N. Y.) 241.]
.
PART IV.] AGENCY. 61

of third persons, who have dealt with him as such. Cases
frequently occur, in which, from the habit and course of con-
duct and dealing adopted by the principal, the Jury have
been advised and permitted to infer the grant of authority to
one to act as his salesman,’ broker,’ servant,‘ or general agent,
and even to his wife,® to transact business in his behalf; and
he has been accordingly held bound. A single payment,
without disapprobation, for what a servant bought upon,
credit, has been deemed equivalent to a direction to trust !
him in future ;* and the employer has been held bound am
such case, though he sent him the second time with ready
money, which the servant embezzled.® / In regard to the pay-
ment of moneys due, the authority to receive payment is
inferred from the possession of a negotiable security; and
in regard to bonds, and other securities not negotiable, the
person who is intrusted to take the security and to’ retain

 

1 2 Kent, Comm. 614, 615. The decisions on implied agencies are col-
lected and arranged, with just discrimination, in 1 Hare & Wallace’s Amer-
ican Leading Cases, p. 898-404...

2 Story on Agency, § 55; Harding v. Carter, Park on Ins. p. 4; Prescott
v. Flinn, 9 Bing. 19. Evidence that the defendant’s son, a minor, had in
three or four instances signed for his father, and had accepted bills for him,
has been held suflicient prima facie evidence of authority to sign a collateral
guaranty. Watkins v. Vince, 2 Stark. R. 368.

3 Whithead v. Tuckett, 15 East, 400.

4 Hazard v. Treadwell, 1 Stra. 506.

5 Burt v. Palmer, 5 Esp. 145; Peto v. Hague, 5 Esp. 134.

6 Palethorp v. Furnish, 2 Esp. 511; Ante, Vol. 1, § 185, and cases there
cited ; Emerson v. Blondon, 1 Esp. 142; Anderson v. Sanderson, 2 Stark.
R. 204; Clifford v. Burton, 1 Bing. 199; 1 Bl. Comm. 430 ; Fenner v. Lewis,
10 Johns. 38; Lord v. Hall, 8 M. G. & S. 627. :

7 1 Bl. Comm. 430; Bryan v. Jackson, 4 Conn. 291; Story on Agency,
§ 56. [But it is no proof of authority of a party to make purchases for
another, that on a former occasion the latter has paid accounts in which,
articles were included which had been so purchased in his name, if it appear .
that he was ignorant that such things were embraced in the account. Teb-
betts v. Moore, 19 N. H. 369.]

8 Rushby v. Scarlett, 5 Esp. 76 ; Hazard v. Treadwell, 1 Stra. 506 ; Story
on Agency, § 56.

VOL. IL. 6
62 LAW OF EVIDENCE. [PART LV.

it in his custody, is generally considered as intrusted with
power to receive the money, when it becomes due.!

§ 66. Where the agency is to be proved by the subsequent
ratification and adoption of the act by the principal, there
must be evidence of previous knowledge, on the part of the
principal, of all the material facts.2 The act of an unauthor-
ized person, in such cases, is not void, but voidable;? but
when the principal is once fully informed of what has been
done in his behalf, he is bound, if dissatisfied, to express his
dissatisfaction within a reasonable time; and if he does not,
his assent will be presumed.* But where the act of the agent
was by deed, the ratification also must in general be by deed ;®
or, more generally speaking, wherever the adoption of any
particular form or mode is necessary to confer the authority

 

1 Story on Bills, § 415; Story on Agency, §§ 98, 104; Wolstenholm v.
Davies, 2 Freem. 289; 2 Eq. Cas. Abr. 709; Duchess of Cleaveland v.
Dashwood, 2 Freem. 249; 2 Eq. Cas. Abr. 708; Owen v. Barrow, 1 New
Rep. 101; Kingman »v. Pierce, 17 Mass. 247; Anon, 12 Mod. 564; Gerard v.
Baker, 1 Ch. Cas. 94. [A purchase by a principal, personally and on his own
credit, of goods selected by his agent, is no authority for subsequent sales to
the agent alone on the principal’s credit. Town’s Adm’s v. Hendee, 1 Wil-
liams, (Vt.) 258. Evidence that one negotiable note, given to one person
by an agent in behalf of his principal, was paid by the principal under pro-
test, and on receiving satisfactory indemnity from the agent, is not sufficient
evidence of the authority of the agent to bind the principal by a similar
note to another person. Temple v. Pomroy et al. 4 Gray, 128.]

2 Owens v. Hull, 9 Pet. 607; Bell v. Cunningham, 3 Pet. 81; Courteen
v. Touse, 1 Campb. 43, n. See also Wilson v. Tummon, 6 Scott, N. R. 894;
[Nixon v. Palmer, 4 Selden, (N. Y.) 398.]

3 Denn v. Wright, 1 Pet. C. C. R. 64.

4 Cairnes v. Bleecker, 12 Johns. 800; Bradin v. Dubary, 14 S. & R. 27;
Amory v. Hamilton, 17 Mass. 1083; Ward v. Evans, 2 Salk. 442. If he
assents while ignorant of the facts, he may disaffirm when informed of them.
Copeland v. Merchants’ Ins. Co. 6 Pick. 198. [The rule is a very stringent
one, that, where the principal has a full knowledge of the acts of his agent
from which he receives a direct benefit, he must dissent and give notice of
his dissent within a reasonable time, or his assent and ratification will be
presumed. Brigham et al. v. Peters et al. 1 Gray, 147. See also Lindsley
v. Malone, 23 Penn. State R. (11 Harris,) 24.]

5 Blood v. Goodrich, 9 Wend. 68 ; 12 Wend. 525, 8. C.; Story on Agency,
§ 252,
PART IV.] AGENCY. 63

in the first instance, the same mode must be pursued in the
ratification! The acts and conduct of the principal, evincing
an assent to the act of the agent, are interpreted liberally in
favor of the latter; and slight circumstances will sometimes
suffice to raise the presumption of a ratification; which be-
comes stronger, in proportion as the conduct of the principal
is inconsistent with any other supposition.?- Thus, if goods
are sold without authority, and the owner receives the price,
or pursues his remedy for it by action at law against the
purchaser, or if any other act be done in behalf of another,
who afterwards claims the benefit of it, this is a ratification?
Payment of a loss, upon a policy subscribed by an agent, is
evidence that he had authority to sign itt Proof that one was
in the habit of signing policies in the name and as the agent
of another, and with his knowledge, is evidence of his au-
thority to sign the particular policy in question ;* and if the
principal has been in the habit of paying the losses upon poli-
cies so signed in his name, this has been held sufficient proof
of the agency, though the authority was conferred by an in-
strument in writing. And an authority to sign a policy, is
sufficient evidence of authority to adjust the loss.’ Where
the principal, in an action against himself on a policy signed
by an agent, used the affidavit of the agent to support a
motion to put off the trial, in which the agent stated, that he

 

1 Despatch Line, &c. v. Bellamy Man. Co. 12 N. Hamp. 205; Boyd v.
Dobson, 5 Humphr. 37.

2 Story on Agency, § 253; Ward v. Evans, 2 Salk. 442.

3 Peters v. Ballistier, 3 Pick. 495. But if the action is discontinued or
withdrawn, on discovering that the remedy is misconceived, it is not a rati-
fication. Ibid. See also Lent v. Padelford, 10 Mass. 230; Episcopal Charit.
Soc. v. Epis. Ch. in Dedham, 1 Pick. 372; Kupfer v. Augusta, 12 Mass.
185; Odiorne v. Maxcy, 13 Mass. 178; Herring v. Polley, 8 Mass. 113;
Pratt v. Putnam, 13 Mass. 361; Fisher v. Willard, Ib. 379; Copeland »v.
Merchants’ Ins. Co. 6 Pick. 198.

4 Courteen v. Touse, 2 Campb. 43, u.

5 Neal v. Irving, 1 Esp. 61.

6 Haughton v. Ewbank, 4 Campb. 88. So of bills of exchange. Hooe v.
Oxley, 1 Wash. 19, 23.

7 Richardson v. Anderson, 1 Campb. 43, n. See also 2 Kent, Comm.
614, 615.
64. LAW OF EVIDENCE. |PART Iv.

subscribed the policy for and on account of the defendant,
this was held a ratification of the signature.!

§ 67. Long acquiescence of the principal, after knowledge
of the act done for him by another, will also, in many cases,
be sufficient evidence of aratification. If an agency actually
existed, the silence or mere acquiescence of the principal may
well be taken as proof of a ratification. If there are peculiar
relations between the parties, such as that of father and son,
the presumption becomes more vehement, whether there was
an agency in fact or not, and the duty of disavowal is more
urgent. And if the silence of the principal is either contrary
to his duty, or has a tendency to mislead the other side, it is
conclusive. ¥ Such is the case among merchants, when notice
of the act done is given by a letter which is not answered in
a reasonable time. Whether a mere voluntary intermeddler,
without authority, is entitled to the benefit of the principal’s
silence, is not clearly agreed; but the better opinion is, that
where the act was done in good faith, for the apparent bene-
fit of the principal, who has full notice of the act, and has
done nothing to repudiate it, the agent is entitled to the
benefit of his silence, as a presumptive ratification.”

§ 68. If the act of the agent was in itself unlawful and
directly injurious to another, no subsequent ratification will
operate to make the principal a trespasser; for an authority
to commit a trespass does not result by mere implication of
law. ‘The master is liable in trespass for the act of his ser-
vant, only in consequence of his previous express command;

 

1 Johnson v. Ward, 6 Esp. 47; Ante, Vol. 1, §§ 196, 210.

2 Story on Agency, §§ 255, 256, 257, 258, cum notis; Amory v. Hamilton,
17 Mass. 103; Kingman v. Pierce, Ib. 247; Frothingham v. Haley, 3 Mass.
70; Erick v. Johnson, 6 Mass. 193. [See Abbe v. Rood, 6 McLean, 156.
The rule is otherwise where the agency is illegal. Harrison v. McHenry, 9
Geo. 164.]

3 See 1 Parsons on Contr. pp. 69, 70, n. [A corporation may be sued for
an assault and battery committed by their servant acting under their au-
thority. Moore v. Fitchburg Railroad Co. 4 Gray, 465.]
PART IV.] AGENCY. 65

which may be proved, either by direct evidence of the fact,
or by his presence at the time of the transaction, or by any
other legal evidence, which will satisfy the Jury. In the
absence of such proof, the master is not liable in fort ; for the
only act of the master is the employment of the servant, from
which no immediate prejudice can arise to any one; and the
only authority presumed by the law, is an authority to do all
lawful acts belonging to his employment But if the ser-
vant, in doing such acts, perpetrates a fraud upon another, or
occasions a consequential injury, the master is liable in an
action on the case. Thus, where the defendant, being the
owner of a house, employed an agent to sell it, and the agent
described it as free from rates and taxes, not knowing it to be
otherwise ; but it was in fact liable to certain rates and taxes,
as the owner knew; and on the faith,of the agent’s represen-
tation, the plaintiff bought the house; it was held, that the
purchaser, being actually deceived in his bargain, might
maintain case for the deceit against the owner, though it did
not appear that the latter had instructed the agent to make
any representation as to rates and taxes.?

§ 68 a. The proof of agency, thereby charging the prin-
cipal, may be rebutted by showing that his authority was
revoked prior to the act in question. But if he was consti-

 

1 McManus »v. Crickett, 1 East, 106; Middleton v. Fowler, 1 Salk. 282;
Odiorne v. Maxcy, 13 Mass. 178; Salem Bank v. Gloucester Bank, 17 Mass.
1; Wyman »v. The Hal. and Augusta Bank, 14 Mass. 58; Wilson v. Tummon,
6 Scott, N. R. 894; [Southwick v. Estes, 7 Cush. 385.]

2 Story on Agency, § 308; 1 Bl. Comm. 431; Foster v. The Essex Bank,
17 Mass. 479; Gray v. The Portland Bank, 3 Mass. 264; Williams v.
Mitchell, 17 Mass. 98; Lane v. Cotton, 12 Mod. 488; Shaw v. Reed, 9
Watts & Serg. 72. The sheriff, however, on grounds of public policy, is
liable in trespass, for the act of his deputy. Campbell v. Phelps, 17 Mass.
244; 1 Pick. 62.

3 Fuller v. Wilson, 3 Ad. & El. 56, N.S. [When the principal, knowing
a material defect in his property, employs an agent who is ignorant of -such
defect to sell or let the property, and such agent, in consequence, uncon-
sciously makes a false representation to the purchaser, thereby inducing a
contract, the principal will be bound by such misrepresentation. National
Exchange Co. v. Drew, 32 Eng. Law and Eq. R. 1.]

6*
66 LAW OF EVIDENCE. [PART IV.

tuted by writing, and the written authority is left in his
hands subsequent to the revocation, and he afterwards exhib-
its it to a third person, who deals with him on the faith of it
without notice of the revocation, or the knowledge of any
circumstances sufficient to have put him on his guard, the
act of the agent, within the scope of the written authority
will bind the principal.

 

1 Beard v. Kirk, 11 N. Hamp. 397.

Note. [Mr. Justice Story (Story on Agency, ch. xviii.) states the law in
regard to the dissolution or determination of agency in substance as follows:
An agency may be dissolved either by the revocation of the principal, or by
the renunciation of the agent, or by operation of law, as where the event
oceurs, or the period expires, to which and by which it was originally limited ;
or where the state and condition of the principal or agent has changed; or
where the principal or agent dies; or where the subject-matter of the agency
has become extinct, or the principal’s power over it has ceased ; or where the
trust confided to the agent has been completely executed. In general, a
principal may determine or revoke the authority given to his agent, at his
mere pleasure, and this is so even if the authority be expressly declared to
be irrevocable, unless it be coupled with an interest, or unless it was given
for a valid consideration. But where an authority or power is coupled with
an interest, or where it is given for a valuable consideration, or where it is
part of a security, then, unless there is an express stipulation that it shall be
revocable, it is from its own nature and character irrevocable in contempla-
tion of law, whether it is or is not expressed to be so upon the face of the
instrument conferring the authority. If the authority has been in part exe-
cuted by the agent, and if it admits of severance or of being revoked as to
the part unexecuted, it would seem that the revocation either as to the agent
or as to third persons, is good as to the part unexecuted, but not as to the
part already executed. Ifthe authority is not thus severable, the principal,
it would seem, cannot revoke the unexecuted part, at least without fully in-
demnifying the agent; and, it would seem, the right of the other contracting
party would not be affected by the revocation.

The revocation may be express, as by a direct and formal declaration
publicly made known, or by an informal writing, or by parol; or it may be
implied from circumstances, as where the principal employs another person
to do the same act, and the exercise of the authority of both is incompatible ;
or where the principal should himself collect the debts, which he had pre-
viously authorized the agent to collect.

The revocation takes effect as to the agent, when it ismade known to him;
as to third persons when it is made known to them, and not before. Hence
if an agent is employed to sign, indorse, or accept bills and notes for his prin-
cipal, and he is discharged by the principal, if the discharge is not known
PART Iv.] AGENCY. 67

by persons dealing with him, notes and bills subsequently signed, indorsed,
or accepted by the agent, will be binding upon the principal, upon the well-
known maxim of law and equity, that where one of two innocent ee
must suffer, he shall suffer who by his confidence, or silence, or conduct, has
misled the other.

An instance of the revocation of the authority of an agent, through the
operation of law, by a change of condition or of state, producing incapacity
in either party, when such authority is not coupled with an interest, is where
an unmarried woman, as principal, gives authority to an agent, and after-
wards marries, the marriage revokes ‘the authority. So where the principal
becomes insane, the lunacy having been established by an inquisition, it
would seem that the authority of the agent would or might be revoked or
suspended, during the continuance of the insanity. The bankruptcy of the
principal operates as a revocation of the authority of the agent, touching
any rights of property of which he is devested by the bankruptcy. Where
the authority is coupled with an interest, as it need not be executed in the
name of the principal, but is valid if executed in the name of the agent, it
is not revoked by the marriage, or insanity, or bankruptcy of the principal.

The death either of the principal or agent, operates as a revocation of the
authority of the agent, if such authority is not’ coupled with an interest ;
even though the authority is declared in express terms to be irrevocable.
Hunt v. Rousmaniere’s Adm’r, 8 Wheat. 174. See also Wilson v. Edmonds,
3 Foster, (N. H.) 360; Dick v. Page, 17 Mis. (2 Bennett,) 234; McDonald
v. Black, 20 Ohio, 185. The payment of money to an agent after the death
of the principal, the death being unknown to both parties, is a good payment,
and binds the estate of the principal. Cassiday v. McKenzie, 4 Watts &
Serg. 282. See post, § 518.]

‘
68 LAW OF EVIDENCE. [PART Iv.

ARBITRATION AND AWARD.

§ 69. A susmission to arbitration may be by parol, with
mutual promises to perform the award; or by deed or by
rule of Court; or by any other mode pointed out by statute.!
In the first case, the remedy may be by an action of assump-
sit, upon the promise to perform the award; in the second, it
may be by debt for the penalty of the arbitration bond, or by
covenant, upon the agreement or indenture of submission ;
in the third case, it may be by attachment, or by execution
upon the judgment entered up pursuant to the rule of Court,
or to the statute ; and in any case it may be by an action of
debt upon the award. An award, duly made and performed,
may also be pleaded in bar of any subsequent action for the
same cause.?

 

1 [The tendency of modern jurisprudence is to give force, conclusive-
ness, and effect, to all awards, where there is no corruption or misconduct
on the part of the referees, and where no deception has been practised upon
them. By Shaw, C. J.,in Fairchild v. Adams, 11 Cush. 550; Strong v.
Strong, 9 Ib. 560; Kendrick v. Tarbell, 26 Vt. 416; Ebert v. Ebert, 5 Md.
353.)

2 In the simplest form of arbitration, namely, a verbal submission to a sin-
gle arbitrator, the declaration is as follows: “For that on there were
divers controversies between the plaintiff and the said D, concerning their
mutual accounts, debts, and dealings, and thereupon they theri, at , by
their mutual agreement, appointed one E to hear and determine for them
all the said controversies, and mutually promised each other to stand to,
.abide by, and perform the award of the said E thereupon. And the said E
afterwards, on , there heard the plaintiff and the said D, and adjudged
upon the premises, and awarded that the said D should pay to the plaintiff
a balance of on demand, and publish [and notified the said parties of ]
the same. Yet,” &c.

The following form is proper, where the agreement is in writing without
seal, and the submission is to three persons, with power in any two to make
an award: “ For that whereas on —— there were divers controversies be-
tween the plaintiff and the said D concerning their mutual accounts, debts,
and dealings, and thereupon they then, by their mutual agreement in writing,

 

 

 

 
PART Iy.] ARBITRATION AND AWARD. 69

§ 70. The action of debt on the award itself, is sometimes
preferable to any other form of action, inasmuch as if judg-
ment goes by default, it is final in the first instance, the sum
to be recovered being ascertained through the medium of
the award; whereas in debt on the bond, breaches must be
suggested and a hearing had pursuant to statutes; and in
assumpsit, and in covenant, the judgment by default is but
interlocutory! But this is only where the award is for a

 

submittted and referred said controversies [and all other mutual demands
between them] to the final award and determination of A, B, and C, and in
and by said writing further agreed [here set out any other material parts of
the agreement] that the award of the said A, B, and C, or any two of them,
being duly made in the premises [in writing, and ready to be delivered to
the said parties or either of them on or before, (or) and duly notified to
the parties as the case may have been] should be binding and final; and the
plaintiff and the said D then and there mutually promised each other to
stand to, abide by, and perform the award so made. And the plaintiff avers,
that the said'A, B, and C, afterwards heard the plaintiff and the said D
upon all the matters referred to them as aforesaid, and thereupon, on
the said [A and B, two of said] referees [the said C refusing to concur
therein] made and published their award [in writing] of and concerning the
premises, [and then and there duly notified the said parties of the same] and
did thereby award and finally determine, that there remained a balance due
from the said D to the plaintiff, of —— to be paid to the plaintiff [on de-
mand,] (&c.) Yet,” &c.

The count in covenant contains averments similar to that in assumpsit.

The count in debt on an award is as follows: “For that, whereas the
said D, on was indebted to the plaintiff in the sum of ——, upon and
by virtue of an award made by one E, on a submission before that time
made by the plaintiff and the said D to the award and determination of the
said E, concerning certain matters in difference then depending between
the plaintiff and the said D, and upon which said reference the said E
awarded that the said D should pay to the plaintiff the sum of money
aforesaid, upon request; whereby, and by reason of the non-payment
whereof, an action has accrued to the plaintiff, to demand and have of and
from the said D the sum aforesaid. Yet the said D has not paid the same,
nor any part thereof. The damage,” &c. An allegation of mutual promises
to abide the award would vitiate this declaration. Sutcliffe v. Brooke, 9
Jur. 1112; 14 M. & W. 855. .

11 Steph. N. P. 180. In those of the United States, in which the dam-
ages, upon default, are made up forthwith by the Court, or by a Jury im-
panelled on the spot, without a writ of inquiry, this mode of remedy does
not seem to possess any practical advantage over others.

 

 

 
70 LAW OF EVIDENCE. [PART lv.

single sum of money; for if it is to do any other thing, the
remedy should be sought in some other mode. Where the
submission is by deed, with a penalty, the best form of action
is debt for the penalty; for by declaring on the award, the
plaintiff takes upon himself the burden of proving a mutual
submission ; but by declaring on the bond, he transfers the
burden to the defendant, on whom it will then lie to dis-
charge himself of the penalty, by showing a performance of
the conditions.!

§ 71. In proving an award, it must first appear, that the
arbitrators had sufficient authority to make it If the agree-
ment of submission was in writing, it must be produced, and
its execution by all the parties to the submission must be
proved Therefore, where four persons, being copartners,
agreed to refer all matters in difference between them, or any
two of them, to certain arbitrators, who made an award in
which they found several sums due to and from the partner-
ship, and also divers private balances due among the partners

 

1 Ferrer v. Oven, 7 B. & C. 472, per Bayley, J. [An award under
a general submission in writing , whether under seal or not, of all disputes
between A and B, that A shall pay certain debts of B to third persons,
although made on the express condition that A shall receive certain property
of B, will not support an action against A by one of such third persons to
recover a debt specified in the award. Millard v. Baldwin, 3 Gray, 484.]

2 Antram v. Chase, 15 East, 209. An attorney has no sufficient authority
to refer on behalf of an infant plaintiff. Biddell v. Dowse, 6 B. & C. 255.
Nor has one partner authority to bind the firm. Stead v. Salt, 3 Bing. 101.
Proof of the submission has been held necessary even after the lapse of forty
years. Burghardt v. Turner, 12 Pick. 534. [Where the submission is made
\pursuant to a statute,an exact compliance with the provisions of the statute
is necessary to give effect to the statute and confer jurisdiction; and the ap-
pearance before the referees is not a waiver of exceptions to any irregular-
ity affecting the jurisdiction. Abbott y. Dexter, 6 Cush. 108; Heath v. Ten-
ney, 3 Gray, 380; Carpenter v. Spencer, 2 Gray, 407; Henderson »v.
Adams, 5 Cush. 610; Low »v. Nolte, 15 Ill. 368. If an award is recommitted
generally, the authority of the arbitrator is not restricted by such recommit-
ment within any narrower limits than are prescribed by the original submis-
sion. French v. Richardson, 5 Cush. 450.]

3 Ferrer v. Oven, 7 B. & C, 427.
PART IV.] ARBITRATION AND AWARD. T1

from one to another ; in an action between two of them upon
the award to recover one of these private balances, it was
held necessary to prove the execution of: the deed of submis-
sion by them all; the execution of each being presumed to
have been made upon the condition, that all were to be
bound equally with himself. If the submission was by rule
of Court, an office copy of the rule will be sufficient proof of
the Judge’s order? But if the agreement of submission is
attested by witnesses, and its execution is denied; the rule
or order by which the agreement was made a rule of Court,
is not the proper evidence of the signature of the agreement,
but it must be proved by the attesting witnesses.

§ 72. If the submission was by parol, it is material to prove
not only that both parties promised to abide by the award,
but that the promises were concurrent and mutual; for other-
wise each promise is but nudum pactum.4

§ 73. If the award was made by an umpire, his appoint-
. ment must also be proved. The recital of his authority in
the award signed by himself and the arbitrators, is not suffi-
cient.2 He cannot be selected by the arbitrators by lot, with-
out consent of the parties. His appointment will be good,

 

1 Antram v. Chase, 15 East, 209. See also Brazier v. Jones, 8 B. & C.
124. [A submission to arbitration where a partnership is a party, under
the Massachusetts Statute, (Rev. Stat. c. 114,) must show who are members
of the firm, and if such fact do not appear in the submission, or in the award,
the Court to which the award is returned, cannot hear and determine that
question. Wesson v. Newton, 10 Cush. 114.]

2 Still v. Halford, 4 Campb. 17; Gisborne v. Hart, 5 M. & W. 50.

3 Berney v. Read, 9 Jur. 620; 7 Ad. & El. 79, N.S.

4 Keep v. Goodrich, 12 Johns. 397; Livingston v. Rogers, 1 Caines, 583;
Kingston v. Phelps, Peake’s.Cas. 227. An arbitrator is a competent witness
to prove the matters submitted to arbitratién, and the award made thereon.
Allen v. Miles, 4 Harringt. 234. And see Graham v. Graham, 9 Barr. 254.
[See post, § 78; Houghton v. Houghton, 87 Maine, 72; Ennos v. Pratt, 26
Vt. 630.]

5 Still v. Halford, 5 Campb. 18. Nor is such recital necessary. Semble,
Rison v. Berry, 4 Rand. 275.

6 Young v. Miller, 3 B. & C. 407; ‘Wells v. Cooke, 2 B. & A. 218;
72 LAW OF EVIDENCE [PART Iv.

ca

though made before the arbitrators enter on the business re-
ferred to them ;! and they may well join with him in making
the award. And if the arbitrators appoint an umpire with-
out authority, yet if the parties appear and are heard before
him, without objection, this is a ratification of his appoint-
ment.

§ 74. The next point in the order of evidence, is the ezxe-
cution of the award ; which must be proved as in other cases,
by the subscribing witness, if there be any, and if not, then
by evidence of the handwriting of the arbitrators If the
award does not pursue the submission, it is inadmissible. If
therefore the submission be to several, without any authority
in the majority to decide, and the award is not signed by all,
itis bad} And though a majority have power to decide, yet,
in an award by a majority only, it must appear that all the
arbitrators heard the parties, as well those who did not, as
those who did concur in the decision.® It will be presumed
that all matters, included within the terms of the submission

 

Harris v. Mitchell, 2 Vern. 485; In re Cassell, 9 B. & C. 624 (overruling
Neale v. Ledger, 16 East, 51); Ford v. Jones, 3 B. & Ad. 248. But if the
parties agree toa selection by lot, it will be good. In re Tunno, 5 B. &
Ad. 488.

1 Roe d. Wood v. Doe, 2 T. R. 644; Bates v. Cooke, 9 B. & C. 407;
McKinstry v. Solomons, 2 Johns. 57; Van Cortlandt v. Underhill, 17 Johns.
405.

2 Soulsby v. Hodgson, 3 Burr. 1474; 1 W. Bl. 463, S. C.; Beck ». Sar-
gent, 4 Taunt. 232.

3 Matson v. Tower, Ry. & M.17; Norton v. Savage, 1 Fairf. 456,

4 Anie, Vol. 1, § 569-581. [A parol award is sufficient though the sub-
mission is in writing, ifit does not require the award to be in writing,
Goodell v. Raymond, 1 Williams, (Vt.) 241.]

5 Towne v. Jaquith, 6 Mass. 46; Baltimore Turnp. case, 4 Binn. 481;
Crofoot v. Allen, 2 Wend. 4945 [French v. Richardson, 5 Cush. 450;
Quimby v. Melvin, 8 Foster, (N. H.) 250.]

6 Short v. Pratt, 6 Mass. 496; Walker v. Melcher, 14 Mass. 148. But
upon a rehearing, if one of the arbitrators refuses to attend, the others are
competent to reaflirm the former award; Peterson v. Loring, 1 Greenl. 64;
though not to revise the merits of the case. Cumberland v. North Yarmouth,
4 Greenl. 459; [Maynard v. Frederick, 7 Cush. 247.]
PART IV.] ARBITRATION AND AWARD. 73

were laid before the arbitrators, and by them considered ; but
this presumption is not conclusive, evidence being admissible
to prove that a particular matter of claim was not in fact
laid before them, nor considered in their award.!

§ 75. If the submission required that notice of the award
should be given to the parties, this notice, as it must in that
case have been averred in the declaration, is the next point to
be proved; but if it was not required by the submission, both
the averment and the proof are superfluous.’ It is essential,
however, to allege, and therefore to prove, that the award was
published ;? and an award is published whenever the arbitra-
tor gives notice that it may be had on payment of his charges.‘
If the agreement is that the award shall be ready to be de-
livered to the parties by a certain day, this is satisfied by proof
of the delivery of a copy of the award, if it be accepted with-
out objection on that account ;° and if it be only read to the
losing party, who thereupon promises to pay the sam awarded,
this is sufficient proof of the delivery of the award, or rather
is evidence of a waiver of his right to the original or a copy,
even though it was afterwards demanded and refused.

§ 76. It is not necessary to allege, nor, of course, to prove,
a demand of payment; except where the obligation is to pay
a collateral sum upon request, as, where the defendant prom-

 

1 Martin v. Thornton, 4 Esp. 180; Ravee v. Farmer, 4 T. R. 146; Web-
ster v. Lee, 5 Mass. 334; Hodges v. Hodges, 9 Mass. 320; Smith v. Whiting,
11 Mass. 445, (Rand’s ed.) and cases citéd in note (a); Bixby v. Whitney,
5 Greenl. 192; [Post,§ 78; Tallman v. Tallman, 5 Cush. 325.]

2 Juxon v. Thornhill, Cro. Car. 132; Child v. Horden, 2 Bulstr. 144; 2
Saund. 62 a, note (4), by Williams.

3 Kingsley v. Bill, 9 Mass. 198; [Thompson v. Mitchell, 35 Maine, 281.]

4 McArthur v. Campbell, 5 B. & Ad. 518; Musselbrook v. Dunkin, 9 Bing.
605. See also Munroe v. Allaire, 2 Caines, 320.

5 Sellick v. Adams, 15 Johns. 197; [Low v. Nolte, 16 Ill. 475.] In
strictness, to constitute the proper service of an award, so as to authorize
an attachment for not performing it, a copy must not only be delivered,
but the original must also at the same time be shown to the party. Loyd

-v. Harris, 8 M. G.,& Sc. 63.

6 Perkins v. Wing, 10 Johns. 143.

‘VOL. IL 7
T4 LAW OF EVIDENCE. [PART Iv.

ised to pay a certain sum upon request, if he failed to per-
form an award; in which case an actual request must be
alleged and proved. In all other cases, where the award is’
for money, which is not paid, the burden of proof is on the
defendant, to show that he has paid the sum awarded, the
- bringing of the action being a sufficient request! The aver-
ment of a promise to pay, will be supported by evidence of
an agreement to abide by the decision of the arbitrators?

§ 77. Where the thing, to be done by the defendant, de-
pends on a condition precedent, to be performed by the plain-
tiff, such performance must be averred and proved by the
plaintiff. And if by the terms of the award, acts are to be
done by both parties on the same day, as, where one is to
convey land, and the other to pay the price, there, in an
action for the money, the plaintiff must aver and prove a
performance, or an offer to perform, on his part, or he cannot
recover ; for the conveyance, or the offer to‘convey, from the
nature of the case, was precedent to the right to the price?

§ 78. In defence of an action on an award, or for not per-
forming an award, the defendant may avail himself of any
material error or defect, apparent on the face of the award;
such as excess of power by the arbitrators ;* defect of exe-
cution of power, as, by omitting to consider a matter sub-

 

1 Birks v. Trippet, 1 Saund. 32, 33, and note (2) by Williams. If the
reference is general, and the arbitrator directs the payment to be made at
a certain time and place, this direction may be rejected as surplusage.
Rees v. Waters, 4 D. & L. 567; 16 M. & W. 263.

2 Efner v. Shaw, 2 Wend. 567.

3 Hay v. Brown, 12 Wend. 591; [Nelson v. Clough, 3 Cush. 463. Where
an award directed A to sign, seal, and deliver a deed “ forthwith” to B,
though it appeared on the face of the award that the execution of that deed
depended on the prior execution of another, itis not bad; the word “ forth-
with” meaning as soon as B should be in a condition to call on A to exe-
cute. Bluck v. Boyes, 22 Eng. Law & Eq. 503.]

4 Morgan v. Mather, 2 Ves. 18; Fisher v. Pimbley, 11 East, 189 ; Macomb
v. Wilber, 16 Johns. 227; Jackson v. Ambler, 14 Johns,96. See also Com-
monwealth v. Pejepscot Propr’s, 7 Mass. 399.
PART IV.] ARBITRATION AND AWARD. 75

mitted ;! want of certainty to a common intent ;? or plain
mistake of law, as, allowing a claim of freight, where the
ship had never broken ground;*® and the like. In regard to
corruption or other misconduct or mistake of the arbitrators
in making their award, the Common Law seems not to have
permitted these to be shown in bar of an action at law for
non-performance of the award; but the remedy must be
pursued in Equity.* But in this country, in those States
where the jurisdiction in Equity is not general, and does not
afford complete relief in such cases, it has been held, that if
arbitrators act corruptly, or commit gross errors or mistakes
in making their award, or take into consideration matters not
submitted to them, or omit to consider matters which were
submitted, or the award be obtained by any fraudulent prac-
tice or suppression of evidence by the prevailing party, the

 

1 Mitchell v. Stavely, 16 East, 58; Bean v. Farnam, 6 Pick. 269. But
not unless the omission is material to the award. Davy v. Faw, 7 Cranch,
171; Harper v. Hough, 2 Halst. 187; Doe v. Horner, 8 Ad. & El. 235.
[An award of referees under a rule of Court, that each party pay’his own
costs, and that the defendant pay to the plaintiff ten dollars as the defend-
ant’s share of the referee’s fees, is a sufficient determination of the matter
submitted. Stickles v. Arnold, 1 Gray, 418. An award in part void because
beyond the submission, is not wholly invalid, if the void part is clearly inde-
pendent of the remainder, and forms no part of the consideration therefor.
Barrows v. Capen, 11 Cush. 37; Maynard v. Frederick, 7 Cush. 252. See
also Johnson v. Knowlton, 35 Maine, 467; Smith v. Potter, 1 Williams,
(V¥t.) 304.] ;

2 Jackson v. Ambler, 14 Johns. 96; [Clark v. Burt, 4 Cush. 396; Ross v.
Clifton, 9 Dowl. Prac. Cas. 360.] $

3 Kelly v. Johnson, 3 Wash. R. 45. See also Gross v. Zorger, 3 Yeates,
521; Ross v. Overton, 3 Call, 309; Morris v. Ross, 2 H. & M. 408; Green-
ough v. Rolfe, 4 N. H. 357; Ames v. Milward, 8 Taunt. 637.

4 Watson on Arbitrations, p. 153, in 11 Law Lib. 79; Shepherd v. Wat-
rous, 3 Caines, 166; Barlow v. Todd, 3 Johns. 367; Cranston v. Kennedy,
9 Johns. 212; Van Cortlandt v. Underhill, 17 Johns. 405; Kleine v. Catara,
2 Gallis. 61; Sherron v. Wood, 5 Halst. 7; Newland v. Douglas, 2 Johns.
62. In practice, where no suit is pending, arbitrations are now generally
entered into under the statutes, enacted for the purpose of making the sub-
mission a rule of Court; and in all cases where the submission is made a
rule of Court, the Court will génerally administer relief, wherever it could
be administered in Equity.
76 LAW OF EVIDENCE. [PART IV.

defendant may plead and prove any of these matters in bar
of an action at law to enforce the award! And though arbi-
trators, ordinarily, are not bound to disclose the grounds of
their award,? yet they may be examined to prove that no
evidence was given upon a particular subject ;® or, that cer-
tain matters were or were not examined, or acted on by
them, or that there is mistake in the award ;* and also as to
the time and circumstances under which the award was
made,’ and as to any facts which transpired at the hearing.
Fraud in obtaining the submission may be given in evidence
under the plea of non-assumpsit, or nil debet, by the Common
Law.’

 

1 Bean v. Farnam, 6 Pick. 269; Brown v. Bellows, 4 Pick. 183; Parsons
v. Hall, 3 Greenl. 60; The Boston Water Power Co. v. Gray, 6 Mete. 131;
Williams v. Paschall, 3 Yeates, 564; [Strong v. Strong, 9 Cush. 560; Lin-
coln v. Taunton Copper Manuf. Co. 8 Ib. 415; Leavitt v. Comer, 5 Ib.
129; French v. Richardson, Ib. 450; Briggs v. Smith, 20 Barb. (N. Y.)
409; French v. New, Ib. 481; Taylor v. Sayre, 4 Zabr. 647; Tracy v. Her-
rick, 5 Foster, (N. H.) 381. See also Morgan v. Smith, 9 Mees. & W. 427;
Angus v. Redford, 11 Ib. 69; Cramp v. Adney, 3 Tyrwhitt, 370. An
award made in pursuance of a reference under a rule of Court, will not be
set aside for alleged mistakes of law on the part of the referees, unless they
have themselves been misled, or unless they refer questions of law to the
Court. Fairchild v. Adams, 11 Cush. 548; Bigelow v. Newell, 10 Pick.
348. When all claims and demands between the parties are submitted to
arbitration, it will be intended that the arbitrators have decided all mat-
ters submitted to them, although they do not so state in their award,
unless the contrary appears. Tallman v, Tallman, 5 Cush. 8325. An
award made twelve years after the submission is invalid, unless sufficient
reason is shown for the delay. Hook v. Philbrick, 3 Foster, (N. H.)
288.]

2 Ante, Vol. 1, § 249.

3 Martin v. Thornton, 4 Esp. 180.

4 Roop v. Brubacker, 1 Rawle, 304; Alder v. Savill, 5 Taunt. 454; Zeig-
ler v. Zeigler, 2 S. & R. 286. If upon a submission of “all matters in differ-
ence,” the parties omit to call the attention of the arbitrator to a matter not
necessarily before him, they cannot object to the award on the ground that
he has not adjudicated upon it. Rees v. Waters, 16 M. & W. 268.

5 Woodbury v. Northy, 3 Greenl. 85; [Strong v. Strong, 9 Cush. 560;
Lincoln v. Taunton Manuf. Co. 8 Ib. 415.]

6 Gregory v. Howard, 3 Esp. 113.

7 Sackett v. Owen, 2 Chitty, R. 39.
PART Iv.] ARBITRATION AND AWARD. TT

§'79. The defendant may also show, that the authority of
the arbitrators was revoked before the making of the award.
And the death of either of the parties to a submission at
Common Law, before the award made, will amount to a
revocation; unless it is otherwise provided in the submis-
sion.2. Whether bankruptcy is a revocation, is not clearly
settled? Where the submission is at Common Law, and
even where it is under the statute, but is not yet made a rule
of Court, it seems that either party may revoke the authority
of the arbitrators; though he may render himself liable to
an action for so doing.* But if the submission is by two, a
revocation by one only is void.) If the reference is made an
order of a Court of Equity, the revocation of the authority
of the arbitrators is a high contempt of the Court, and, upon
application of the other party, will be dealt with accordingly.®
If a feme sole, having.entered into a submission to arbitra-
tion, takes husband, the marriage is a revocation of the sub-
mission; but it is also, like every other revocation by the
voluntary act of the party, a breach of the covenant to abide
by the award.’

 

1 Edmunds v. Cox, 2 Tidd’s Pr. 877 ; 8 Doug. 406, S. C.; 2 Chitty, R. 422,
S. C.; Cooper v. Johnson, 2 B. & Ald. 394; Potts v. Ward, 1 Marsh. 366;
Toussaint v. Hartop, 7 Taunt. 571. But if the submission is under a rule of
Court, and the action survives, it is not revoked by death. Bacon v. Cran-
don, 15 Pick. 79.

2 Macdougall v. Robertson, 2 Y. & J. 11; 4 Bing. 435, 8. C.

3 Marsh v. Wood, 9 B. & C. 649; Andrews v. Palmer, 4 B. & Ald. 450;
Ex parte Remshead, 1 Rose, 149.

4 Skee v. Coxon, 10 B. & C. 483; Milne v. Gratrix, 7 East, 608; Clapham,
v. Higham, 1 Bing. 27; 7 Moore, 703; Greenwood v. Misdale, 1 McCl. & Y.
276; Brown v. Tanner, Ib. 464; 1 C. & P. 651, S. C.; Warburton v. Storer,
4B. & ©. 103; Vynior’s case, 8 Co. 162; Frets v. Frets, 1 Cow. 335; Allen
v. Watson, 16 Johns. 305; Fisher v. Pimbley, 11 East, 187; Peters v. Craig,
6 Dana, R. 307; Marsh v. Bulteel, 5 B. & Ald. 507; Grazebrook v. Davis, 5
B. & C. 534, 538; Brown v. Leavitt, 13 Shepl. 251; Marsh v. Packer, 5
Washb. 198.

5 Robertson v. McNeill, 12 Wend. 578.

6 Haggett v. Welsh, 1 Sim. 134; Harcourt v. Ramsbottom, 1 Jac. & Walk.
511.

7 Charnley v. Winstanley, 6 East, 266; Andrews v. Palmer, 4 B. & Ald..
252.

7*
78 LAW OF EVIDENCE. [PART IV.

§ 80. The defendant may also show, in defence, that one
or more of the parties to the submission was a minor, or a
feme covert, and that therefore the submission was void for
want of mutuality. So, he may show that the arbitrators,
before making their award, declined that office ; for thereupon
they ceased to be arbitrators.”

§ 81. Where the action is assumpsit upon a submission by
parol, the plea of non-assumpsit, where it is not otherwise
restricted by rules of Court, puts in issue every material
averment. Under this issue, therefore, the defendant may
not only show those things which affect the original validity
of the submission, or of the award, such as infancy, cover-
ture, want of authority in the arbitrators, fraud, revocation of
authority, intrinsic defects in the award, and, if there is no
other mode of relief, extrinsic irregularities also, such as want
of notice, and the like; but he may also show anything
which at law would defeat and destroy the action, though it
operate by way of confession and avoidance, such as a re-
lease, payment, or performance.2 And sometimes, where
assumpsit has been brought upon the original cause of action,
either party has been permitted to show the submission and
award, under the general issue, as evidence of a statement of
accounts and an admission of the balance due, or of a mutual
adjustment of the amount in controversy.*

 

 

1 Cavendish v. ,1 Chan. Cas. 279 ; Biddell v. Dowse, 6 B. & C. 255.
But it is not a good objection, that one was an executor or administrator
only, for he has authority to submit to arbitration. Coffin v. Cottle, 4 Pick.
454; Bean v. Farnam, 6 Pick. 269; Dickey v. Sleeper, 13 Mass. 244.

2 Relyea v. Ramsay, 2 Wend. 602; Allen v. Watson, 16 Johns. 208.

8 Stephen on Pleading, p. 179-182 (Am. ed. 1824); Taylor v. Coryell, 12
S. & R. 248, 251; Allen v. Watson, 16 Johns. 203.

4 Keene v. Batshore, 1 Esp. 194; Kingston v. Phelps, Peake’s Cas. 228,
PART IV.] ASSAULT AND BATTERY. 79

ASSAULT AND BATTERY.

§ 82. An assault is defined to be an inchoate violence to
the person of another, with the present means of carrying
the intent into effect... Mere threats alone do not constitute
the offence ; there must be proof of violence actually offered.?
Thus, if one ride after another, and oblige him to run toa
place of security to avoid being injured ;° or throw at him
any missile capable of doing hurt with intent to wound,
whether it hit him or not;* or level a loaded gun, or bran-
dish any other weapon, in a menacing manner, within such
a distance as that harm might ensue ;® or advance, in a
threatening manner, to strike the plaintiff, so that the blow
would have reached him in a few seconds, if the defendant
had not been stopped ;° in all these cases the act is an assault.
So, if he violently attack, and strike with a club, the horse
which is harnessed to a carriage, in which the plaintiff is
riding.’ But to stand in another’s way and passively to

 

11 Steph. N. P. 208; Finch’s Law, 202; Stephens v. Myers, 4 C. & P.
349.

2 Stephens v. Myers, 4 C. & P. 349; Tuberville v. Savage, 1 Mod. 3.
The declaration for an assault and battery is thus: “In a plea of trespass ;
For that the said (defendant) on the day of at in and upon
the plaintiff, with foree and arms made an assault, and him the said plaintiff
then and there did beat, wound, and ill treat,” [here may be stated any spe-
cial matter of aggravation] ‘“ and other wrongs to the plaintiff then and there
did against the peace. To the damage,” &e. The material allegationsin an
indictment are the same as in a civil action.

3 Morton v. Shoppee, 3 C. & P. 373.

42 Hawk. P. C., B. 1, ch. 62, § 1.

STbid. If the gun is not loaded, it is no assault. Blake v. Barnard, 9
C. & P. 626 ; Regina v. James, 1 C. & K. 530.

6 Stephens v. Myers, 4 C. & P. 349, per Tindal, C. J.

7 De Marentille v. Oliver, 1 Penning. 380, per Pennington, J. Taking
indecent liberties With a female pupil; Rex v. Nichol, Russ. & Ry. 130; or
with a female patient; Rex v. Rosinski, Ry. & M. 19; though unresisted, is
an assault,

 

 

 
80 LAW OF EVIDENCE. [PART IV.

obstruct his lawful progress, as an inanimate object would,
though done by design, is no assault.)

§ 83. The intention to do harm, is of the essence of an
assault ;? and this intent is to be collected by the Jury, from
the circumstances of the case. Therefore if the act of the
defendant was merely an interference to prevent an unlawful
injury, such as, to separate two combatants ;° or if, at the
time of menacing violence, he used words showing that it
was not his intention to do it at that time, as in the familiar
example of one’s laying his hand on his sword, and saying,
that if it were not assize-time he would not take such lan-
guage ;* or if, being unlawfully set upon by another, he puts
himself in a posture of defence, by brandishing his fists, or
a weapon ;° it is no assault. So, where one threw a stick,
which struck the plaintiff, but it did not appear for what
purpose it was thrown, it was presumed that it was thrown
for a proper purpose, and that the striking of the plaintiff
was merely an accident.®

§ 84. A battery, is the actual infliction of violence on the
person. This averment will be proved by evidence of any
unlawful touching of the person of the plaintiff, whether by
the defendant himself, or by any substance put in motion by
him. The degree of violence is not regarded in the law;7 it
is only considered by the Jury, in assessing the damages ina
civil action, or by the Judge, in passing.sentence, upon indict-
ment. Thus, any touching of the person, in an angry, re-

 

y fs e

1 Zonew. Wylie, 1 C. & K. 257.

2 But as to battery, see infra, § 94.

3 Griffin v. Parsons, 1 Selw. N. P. 25, 26.

4 Bull. N. P. 15; Tuberville v. Savage, 1 Mod. 3; 2 Keb. 545 ; Common-
wealth v. Eyre, 1S. & R. 347.

5 Moriarty v. Brooks, 6 C. & P. 684.
* 6 Alderson v. Waistell, 1 C. & K. 358.

7 Leame v. Bray, 3 East, 602. Cutting off the hair of & parish pauper by
the parish officers, against her will, was held a battery. Ford v. Skinner,
4C. & P. 239,
PART IV.] ASSAULT AND BATTERY. 81

vengeful, rude, or insolent manner ;! spitting upon the per-
son ; 7 jostling him out of the way; ? pushing another against
him ;4 throwing a squib, or any missile, or water upon him ;°
striking the horse he is riding, whereby he is thrown; ®
taking hold of his clothes in an angry or insolent manner, to
detain him;’ is a battery. So, striking the skirt of his coat,
or the cane in his hand ;° is a battery; for anything attached
to the person, partakes of its inviolability.®
*

§ 85. And here, also, the plaintiff must come prepared with
evidence to show, either that the intention was unlawful, or,
that the defendant was in fault; for if the injury was una-
voidable, and the conduct of the defendant was free from
blame, he will not be liable.” Thus, if one intend to doa
lawful act, as, to assist a drunken man, or ‘prevent him from
going without help, and in so doing a hurt ensue, it is no
battery So, if a horse, by a sudden fright, runs away with
his rider, not being accustomed so to do, and runs against a
man; or if a soldier, in discharging his musket by lawful
military command, unavoidably hurts another; ® it is no
battery; and in such cases the defence may be made under
the general issue* But to make out a defence under this
plea, it must be shown that the defendent was free from any

 

12 Hawk. P. C., B. 1, ¢. 62, § 2; de. Comm. 120.

21 East, P. C. 406; Regina v. Cotesworth, 6 Mod. 172.

3 Bull. N. P. 16.

4 Cole v. Turner, 6 Mod. 149.

5 Scott v. Shepherd, 2 W. Bl. 892; 3 Wils. 403, S. C.; Pursell v. Horn,
8 Ad. & El. 605; Simpson v. Morris, 4 Taunt. 821.

6 Dodwell v. Burford, 1 Mod. 24.

7 United States v. Ortega, 4 Wash. 534; 1 Baldw. 600.

8 Respublica v. De Longchamps, 1 Dall. 111, 114, per McKean, C. J.;
The State v. Davis, 1 Hill, (S. Car. R. 46.)

9 Ibid. :

101 Bing. 213, per Dallas, C. J.; 1 Com. Dig. 129, tit. Battery, A.;
1 Chitty on Pl. 120. See infra, § 94, and tit. Damaass, §§ 269, 271.

11 Bull. N. P. 16.

12 Gibbons v. Pepper, 4 Mod. 404; Bull. N. P. 16.

13 Weaver v. Ward, Hob. 134.

14 4 Mod. 405.
82 LAW OF EVIDENCE. [PART Iv.

blame, and that the accident resulted entirely from a superior
agency. A defence, which admits that the accident resulted
from an act of the defendant, must be specially pleaded.t
Thus, if one of two persons fighting, unintentionally strikes
a third; or if one uncocks a gun without elevating the
muzzle, or other due precaution, and it accidentally goes off
and hurts a looker-on;° or, if he drive a horse too spirited,
or pulls the wrong rein, or uses a defective harness, and the
horse, taking fright, infures another;* he is liable for the
battery. But if the injury happened by unavoidable acci-
dent, in the course of an amicable wrestling-match, or other
lawful athletic sport, if it be not dangerous, it may be justi-
fied If it were done in a boxing-match, or fight, though
by consent, it is an unjustifiable battery; ® the proof of con-
sent being admissible only in mitigation of damages.’

§ 86. Neither the time nor the place, laid in the declaration,
are, ordinarily, material to be proved. Evidence of the tres-
pass committed previous to the commencement of the action
is sufficient; 8 and it may be proved in any place, the action,
being personal and transitory But if the declaration con-
tain only one count, and the plaintiff prove one assault, he can-
not afterwards waive that, and prove another? Nor can he
give evidence of a greater number of assaults, than are laid
in the declaration." If the action is against several, for a

 

1 Hall v. Fearnley, 3 Ad. & El. 919, N. 8. See infra, §§ 94, 622, 625;
1 Chitty, Pl. 437; Knapp »v Salsbury, 2 Camp. 500; Boss v. Litton, 5 C.
& P. 407.

2 James v. Campbell, 5 C. & P. 372.

3 Underwood v. Hewson, Bull. N. P.16; 1 Stra. 596, S.C. So, if he
negligently discharges a gun. Dickenson v. Watson, T. Jones, 205; Tay-
lor v. Rainbow, 2 Hen. & Munf. 423; Blin v. Campbell, 14 Johns. 432.

4 Wakeman v. Robinson, 1 Bing. 213.

55 Com. Dig. 795, tit. Phtaper, 3 M. 18; Foster, Cr. Iu. 259, 260.

6 Boulter v. Clark, Bull. N. P. 16; Stout v. Wren, 1 Hawks, 420.

7 Logan v. Austin, 1 Stew. 476. See infra, tit, DAMAGES.

81 Saund. 24, note (1,) by Williams; Bull. N. P. 86; Brownl. 233.

9 Mostyn v. Fabrigas, Cowp. 161. :

10 Stante v. Pricket, 1 Campb. 473.

11 Gillon v. Wilson, 8 Monr. 217.
PART IV.] ASSAULT AND BATTERY. 83.

joint trespass, the plaintiff, having proved a trespass against
some only, cannot afterwards be permitted to prove a tres-
pass done at another time, in which all, or any others, were
concerned ; but he is bound, by the election which he has
made, to charge some only; for, otherwise, some might be
charged for a trespass, in which they had no concern So,
if he prove a trespass against all the defendants, he cannot
afterwards elect to go upon a separate trespass against one?
And if he prove a trespass against some, he is bound to elect
before the defendants open their case, against which defend-
ants he will proceed.®

§ 87. Nor is it necessary to prove an actual battery, though
it must be alleged in the declaration; for, upon proof of an
assault only, the plaintiff will be entitled to recover. °

§ 88. If the plaintiff would recover for consequential inju-
ries, they must be specially laid in the declaration, under a
per quod.> Of these, the loss of the society of his wife, or of
the services of his servant, are examples. The relation of
husband and wife is proved, in such cases, by evidence of a.
marriage de facto. If the action is for assaulting and beating -
the plaintiff’s son,’ or for seducing his daughter, per quod, it
is sufficient to show that the child lived in the parent’s family,

 

1 Sedley v. Sutherland, 3 Esp. 202; Hitchen v. Teale, 2M. & Rob. 30,
But see Roper v. Harper, 5 Scott, 250.

2 Tait v. Harris, 1 M. & Rob. 282, per Ld. Lyndhurst, Ch..B. In Hitchen
v. Teale, 2 M. & Rob. 30, Patteson, J., said he could not very well under-
stand the principle on which this decision was founded.

3% Howard v. Newton, 2 M. & Rob. 509.

4 Bro. Abr. Tresp. pl. 40; 40 E. 8,40; 1 Steph. N. P. 213; Lewis v.
Hoover, 3 Blackf. 407.

5 Pettit v. Addington, Peake’s Cas. 62. But the plaintiff cannot recover
in this form for any injury for which a separate action lies, either by himself,
or by another. 1 Chitty on Pl. 347-349; Wallace v. Hardacre, 1 Campb.
45,49; Bull. N. P. 89.

6 Guy v. Livesey, Cro. Jac. 501; Woodward v. Walton, 2 New Rep. 476;
9 Co. 113, a; Ream v. Rank, 3 S. & R. 215.

7 Jones v. Brown, Peake’s Cas. 233; 1 Esp. 217, 8. C.
84 LAW OF EVIDENCE. [PART Iv.

without proof of actual service ;! or, if the child lived in a
neighbor’s family, it is sufficient to prove, that he also daily
and ordinarily performed services for the parent.’ If the
daughter is emancipated, and resides apart from the parent’s
family, the parent cannot recover. But if the daughter
actually resides with her father, even though she be a mar-
ried woman, if she lives apart from her husband, the father
may maintain the action.t In all these cases, it is sufficient
to prove the relation of master and servant de facto; and
proof of very slight acts of service is sufficient.

§ 89. It is not, however, necessary to state specially any
matters, which are the legal and natural consequence of the
tortious act; for all such consequences of his own actions
every man is presumed to anticipate ; and as one of the ob-
jects of the rule, which requires particularity of averment in
pleading, is, to give the other party notice, that he may come
prepared to meet the charge, such particularity is, in these
cases, superfluous. The plaintiff, therefore, under the usual
allegation of assault and battery, may give evidence of any
damages naturally and necessarily resulting from the act com-
‘plained of But where the law does not imply the damage,
as the natural and necessary consequence of the assault and
battery, it should be set forth with particularity; such, for

 

1 Maunder v. Venn, 1 M. & Malk. 323; Mann v. Barrett, 6 Esp. 32.

2 1 Steph. N. P. 214.

3 Dean v. Peel, 5 East, 45; Anon. 1 Smith, 333; Postlethwaite v. Parkes,
3 Burr. 1878. If the daughter, being under age, is actually in the service
of another, but the father has not devested himself of his right to reclaim
her services, it has been held, that he may maintain this action. Martin v.
Payne, 9 Johns. 387. See infra, tit. SepucTION.

4 Harper v. Luffkin, 7 B. & C. 387.

5 Fores v. Wilson, Peake’s Cas. 55; Bennett v. Alcott, 2 T. R. 166;
Manvell v. Thomson, 2 C. ,& P. 303; Irwin v. Dearman, 11 East, 23 ; Nickle-
son v. Striker, 10 Johns. 115. See, also, 1 Chitty on Pl. 50.

6 Moore v. Adam, 2 Chitty, R. 198, per Bailey, J.; 1 Chitty on Pl. 346.
The plaintiff may recover for the damage he is likely to sustain, after the
trial, as the natural consequence of the injury ; because, for these damages,
he can have no other action. Fetter v. Beale, 1 Ld. Raym. 339; 2 Salk.
11, 8. C. ‘ ;
PART IV.] ASSAULT AND BATTERY. 85

example, as the general loss of health, or the contracting of a
contagious disease, or being stinted in allowance of food, in
an action for an assault and false imprisonment; ,or, an injury
to his clothes, in a personal rencounter and the like The
manner, motives, place, and circumstances of the assault,
however, though tending to increase the damages, need not
be specially stated, but may be shown in evidence. Thus,
where the battery was committed in the house of the plaintiff,
which the defendant rudely entered, knowing that the plain-
tiff’s daughter-in-law was there sick, and in travail, evidence
of this fact was held admissible, without a particular aver-
ment. Nor are the Jury confined to the mere corporal in-
jury which the plaintiff has sustained ; but they are at liberty
to consider the malice of the defendant, the insulting char-
acter of his conduct, the rank in life of the several parties,
and all the circumstances of the outrage, and thereupon to
award such exemplary damages, as the circumstances may
in their judgment require?

§ 90. In proof of the trespass, the plaintiff may give in
evidence a conviction of the defendant upon an indictment
for the same offence, provided the conviction was upon the
plea of guilty; but not otherwise And if it was a joint
trespass, by several, the confessions and admissions of any
of them, made during the pendency of the enterprise and in
furtherance of the common design, may be given in evidence

 

1 Chitty on Pl. 346, 347; Lowden v. Goodrick, Peake’s Cas. 46 ; Pettit
v. Addington, Ib. 62; Avery v. Ray, 1 Mass. 12. See infra, tit. DAMAGEs,
§§ 253, 255.

2 Sampson v. Henry, 11 Pick. 379. .

3 Merest v. Harvey, 5 Taunt. 442. Heath, J., in this case, remarked, that
“it goes to prevent the practice of duelling, if Juries are permitted to punish
‘insult by exemplary damages.” Bracegirdle v. Orford, 2M. & 8. 77; Tul-
lidge v. Wade, 3 Wils. 19; Davenport v. Russel, 5 Day, 145; Shafer v.
Smith, 7 Har. & J. 67. Previous threats of the defendant, in the presence
of the plaintiff, may also be shown. Sledge v. Pope, 2 Hayw. 402. See
infra, tit. DAMAGES, §§ 253, 267, &c. McNamara v. King, 2 Gilm. 432;
Reed v. Davis, 4 Pick. 216.

4 Ante, Vol. 1, § 537, note; Regina v. Moreau, 12 Jur. 626.

VOL. II. 8
86 LAW OF EVIDENCE. [PART Iv.

against the others, after a foundation has been laid by proving
the fact of conspiracy by them all to perpetrate the offence.1

§ 91. The alia enormia, is an averment not essential to the
declaration for an assault and battery; its office is merely
to enable the plaintiff to give in evidence under it such cir-
cumstances belonging to the transaction, as could not con-
veniently be stated on the record.2, Things which naturally
result from the act complained of, may, as we have seen, be
shown under the other averments.

§ 92. Matters of defence in this action are usually distrib-
uted under three heads, namely: first, Inficiation, or denial
of the fact, which is done only by the plea of not guilty;
secondly, Excuse, which is an admission of the fact, but say-
ing it was done accidentally, or by superior agency, and with-
out any fault of the defendant; and this may be either spe-
cially pleaded, or given in evidence under the general issue;
and thirdly, Justification, which must always be specially
pleaded? ‘To these may be added matters in discharge, such
as.a release, accord and satisfaction, arbitrament, former recov-
ery, the statute of limitations, and the, like, which also must
be specially pleaded. But it should be observed that these
tules apply only to suits against private persons. For, where
actions are brought against public officers, for acts done by
virtue of their office, they are permitted, by statutes, to plead
the general issue, with a brief statement in writing of the
special matter of justification to be given in evidence.

§ 93. Under the general issue, the defendant, in mitiga-
tion of damages, may give in evidence a provocation by the
plaintiff, provided it was so recent and immediate as to induce

 

1 Ante, Vol. 1, § 111.

2 1 Chitty on Pl. 348; Lowden v. Goodrick, Peake’s Cas. 45. See infra,
tit. Damaaus, § 276; Supra, § 85.

3 Bull. N. P. 17.

4 1 Chitty on Pl. 441.
PART Iy.] ASSAULT AND BATTERY. 87

a presumption that the violence was committed under the
immediate influence of the passion thus wrongfully excited
by ‘the plaintiff! Indeed, the defendant in mitigation of
damages, may, under this issue, rely on any part of the res
geste, though, if pleaded, it would have amounted to a jus-
tification ; notwithstanding the general rule, that, whatever
is to be shown in justification must be specially pleaded ;
for everything which passed at the time is part of the trans-
action on which the plaintiff’s action is founded, and there- ©
fore he could not be surprised by the evidence.? And it is
also laid down, as a general rule, that whatever cannot be
pleaded, may be given in evidence under this issue. 'There-
fore, where the beating in question was by way of punish-
ment for misbehavior on board a ship, and for the mainte-
nance of necessary discipline, this evidence was held not
admissible in mitigation of damages, because the facts might
have been pleaded in justification4 Where the action was’
for assault and false imprisonment, evidence of reasonable
suspicion of felony has been held admissible, in mitigation
of damages.®

§ 94. In the case of a mere assault, the , qup-enima is mate-

 

1 Dennis v. Pawling, 12 Vin. Abr. 159, tit. Evid. 1 b. pl. 16, per Price,
B.; Lee v. Woolsey, 19 Johns. 319; Cushman v. Waddell, 1 Bald. 58;
Avery v. Ray, 1 Mass. 12; Matthews v. Terry, 10 Conn. 455; Fullerton
v. Warrick, 3 Blackf. 219; Anderson v. Johnson, 3 Har. & J. 162. In
Fraser v. Berkley, 2M. & Rob. 8, Ld. Abinger admitted evidence of provo-
cation, namely, a libel published some time previous to the battery.

2 Bingham v. Garnault, Bull. N. P. 17.

3 2B. & P. 224, note (a). [The defendant cannot show that from the
intemperate habits of the plaintiff, the injury was more aggravated than it
would have been upon a person of temperate habits. Littlehall v. Dix,
11 Cush. 364. Nor can the defendant put in evidence the bad characte
of the plaintiff in mitigation of damages. Corning v. Corning, 2 Selden]
N. ¥. 97.] ’

4 Watson v. Christie, 2 B. & P. 224.

5 Chinn v. Morris, 2 C. & P. 861; 1 Ry. & M. 324,8. C. The law of
damages, in actions ex delicto, in regard to evidence in aggravation or miti-
gation, is treated with great ability and just discrimination, in an article in
8 Am. Jurist, p. 287-313.
88 LAW OF EVIDENCE. [PART IV.

tial, as, without an unlawful intention, there is no assault.
Any evidence of intention, therefore, is admissible under the
general issue! But in the case of a battery, innocence of
intention is not material, except as it may go in mitigation
of damages; unless it can be shown that the defendant
was wholly free from fault; because every man, who is not
entirely free from all blame, is responsible for any immedi-
ate injury, done by him to the person of another, though it
were not wilfully inflicted. Therefore, if the act of the de-
fendant was done by inevitable necessity, as, if it be caused
by ungovernable brute force, his horse running away with
him, without his fault;? or, if a lighted squib is thrown upon
him, and to save himself he strikes it off in a new direction ;3
in these and the like cases, the necessity may be shown
under the general issue, in disproof of the battery. But if
the plaintiff was himself guilty of incautious or improper
conduct, he cannot recover, unless the case was such that,
by the exercise of ordinary care, he‘could not have avoided
the consequences of the defendant’s neglect, or was inca-
pable, by want of understanding or discretion, of taking
such care® In other words, the defendant is answerable
only for those consequences which the plaintiff, by ordinary
care, could not have prevented; the degree of care required
of the plaintiff being limited by his capacity and circum-
stances.®

§ 95. Under the plea of son assault demesne, in excuse,

AE ecm septate

 

Griffin v. Parsons, 1 Selw. N. P. 25, 26; Supra, § 83.

2 Wakeman v. Robinson, 1 Bing. 213; Gibbons v. Pepper, 4 Mod. 404;
1 Salk. 637; Bull. N. P. 16; Hall v. Fearnley, 8 Ad. & El. 919, N. S.;
Vincent v. Stinehour, 7 Verm. 62.
_ 3 Scott v. Shepherd, 3 Wills, 403. See also Beckwith v. Shordike, 4 Burr.
2092; Davis ». Saunders, 2 Chitty, R. 689; Supra, § 85.

4 Davis v. Mann, 6 Jur. 954; 10 M. & W. 546, 8. C.; Kennard v. Bur-
ton, 12 Shepl. 89; [Brown v. Kendall, 6 Cush. 292.]

5 Lynch v. Nurdin, 1 Ad. & El. 29, N. S.; 5 Jur. 797.

8 See Robinson v. Cone, 8 Am. Law J. 313, N. S., where the subject is
fully considered by Redfield, J. 7
PART Iv.] ASSAULT AND BATTERY. 89

with the general replication of de injuria, &&c., the burden of
proof is on the defendant, who Will be bound to show, that
the plaintiff actually committed the first assault; and, also,
that what was thereupon done, on his own part, was in the
necessary defence of his person.!_ . And even violence may be
justified, where the safety of the person was actually endan-
gered.’ If the defendant’s battery of the plaintiff was exces-
sive, beyond what was apparently necessary for self-defence,
it seems, by. the American authorities, that this excess may
be given in evidence under the replication of de injuria,
without either a special replication or a new assignment.®
For, in such a case, the question is as to the degree and pro-
portion of the beating, to the assault. But if the plaintiff’s
answer to the plea of son assault demesne consists of an admis-
sion of the fact, and a justification of it, this cannot, by the
English authorities, be shown in evidence under the replica-
tion de injuria, but must always be specially replied.* If the
declaration contains but one count, to which son assault
demesne is pleaded, without the general issue, the defendant
may give evidence of an assault by the plaintiff, on any day
previous to the day alleged in the declaration; and if the
plaintiff cannot answer the assault so proved, the defendant
will be entitled to a verdict.2 But if the general issue is
pleaded, or the declaration contains charges of several as-

 

1 Crogate’s case, 8 Co. 66; Cockerill v. Armstrong, Willes, 99; Jones v.
Kitchen, 1 B. & P. 79, 80; Reece v. Taylor, 4 Nev. & M. 469; Guy v.
Kitchener, 2 Str. 1271; 1 Wils. 171, S. C.; Phillips v. Howgate, 4 B. & Ald.
220; Timothy v. Simpson, 1 Cr. M. & R. 757.

2 Cockcroft v. Smith, 2 Salk. 642; Bull. N. P. 18.

3 Curtis v. Carson, 2 N. Hamp. 539. See where the plea is moderaté cas-
tigavit ; Hannen v. Edes, 15 Mass. 347; or, molliter manus imposutt; Ben-
nett v. Appleton, 25 Wend. 371. See also 1 Steph. N. P. 216, 220, 221;
Dauce v. Luce, 1 Keb. 884; Sid. 246, 8. C.; 1 Chitty on Pl. 512, n., 545,
627; [Brown v. Gordon, 1 Gray, 182.]

4 Penn v. Ward, 2 Cr. Mees. & Rosc. 338; Dale v. Wood, 7 J. B. Moore,
33; Piggott v. Kemp, 1 Cr. & Mees. 197; Selby v. Bardons, 3 B. & Ald. 1;
1 Cr. & Mees. 500; Bowen ». Parry, 1 C. & P. 394; Lamb v. Burnett, 1 Cr.
& Jer. 291; 2 Chitty’s Prec. 731, 732; Oakes v. Wood, 3 M. & W. 150.

5 Randle v. Webb, 1 Esp. R. 38; Gibson v. Fleming, 1 Har. & J. 483.

g*
90 LAW OF EVIDENCE. [parr Iv.

saults, the plaintiff is not thus restricted, and the defendant’s
evidence must apply to the assault proved.!

§ 96. In regard to the replication of de injuria, the general
rule is, that, as it puts in issue only the matter alleged in the
plea, nothing can be given in evidence under it, which is be-
yond and out of the plea. The plaintiff cannot go into proof
of new matter, tending to show that the defendant’s plea,
though true, does not justify the actual injury. He cannot,
for example, show that the defendant, being in his house,
abused his family and refused to depart, and upon his gently
laying hands on him to put him out, the defendant furiously
assaulted and beat him. So, if the defendant justifies in
defence of his master, the plaintiff cannot, under this issue,
prove that his own assault of the master was justifiable?
So, if the defendant, being a magistrate, justifies,an assault
and imprisonment as a lawful commitment for a bailable
offence, the plaintiff cannot show, under this issue, that suffi-
cient bail was offered and refused.4

§ 97. To support the plea of moderaté castigavit, the de-
fendant must show that the plaintiff was his apprentice, by
producing the indentures of apprenticeship. He must also
-produce evidence of misbehavior on the part of the plaintiff,
sufficient to justify the correction given.6 The same rules
apply, where the relation is that of parent and child, or jailer
and prisoner, or schoolmaster and scholar,’ or shipmaster and
seaman. It must also be shown, that the correction was

 

1 Downs v. Skrymsher, Brown]. 233; Bull. N.P.17; 1 Steph. N. P. 222.

2 King v. Phippard, Carth. 280.

3 Webber v. Liversuch, Peake’s Ad. Cas. 51.

4 Sayre v. E. of Rochford, 2 W. Bl. 1165.

5 1 Saund. on Pl. & Ev. 107. In the case of a hired servant, the right to
inflict corporal punishment, by way of discipline or punishment, is denied.
Matthews v. Terry, 10 Conn. 455. If the servant is a young child, placed
with a master in loco parentis, the ordinary domestic discipline would prob-
ably be justifiable.

6 1 Hawk. P. C. c. 60, § 238.
PART IV.] ASSAULT AND BATTERY. 91

reasonable and moderate ; though in the case of shipmasters,
if the chastisement.was salutary and merited, and there was
no cruelty, or use of improper weapons, the Admiralty Courts
will give to the terms “ moderate correction” more latitude
of interpretation!

§ 98. Under the plea of molliter manus imposuit, the matters
justified are of great variety ; but they will be found to fall
under one of these general heads, namely, the prevention of
some unlawful act, or resistance, for some lawful cause.
If the force was applied to put the plaintiff out of the de-
fendant’s house, into which he had unlawfully entered, or to
resist his unlawful attempt to enter by force, it is sufficient
to show the unlawfulness of the entry, or of the attempt,
without showing a request to depart. But if the entry was
lawful, as if the house were public, or, being private, if he -
entered upon leave, whether given expressly or tacitly and
by usage, there it is necessary to show that he was requested
to depart, and unlawfully refused so to do, therefore the
application of force can be justified” And in all these cases,
to make good the justification, it must appear that no more
force was employed than the exigency reasonably demanded?
If there was a wilful battery, and it is justified, the defendant
must show that the plaintiff resisted by force, to repel which
the battery was necessary. And whenever the justification
is founded on a defence of the possession of property, it is,
ordinarily, sufficient for the defendant to show his lawful

* possession at the time, without adducing proof of an inde-

 

1 Watson v. Christie, 2 B. & P. 224; Brown v. Howard, 14 Johns. 119;
Thorn v. White, 1 Pet. Adm. R. 173; Sampson v. Smith, 15 Mass. 365.

2 Esp. on Evid. 155, 156; Gregory v. Hill, 8 T. R. 299; Bull. N. P. 18,
19; Green v. Goddard, 2 Salk. 641; Williams v. Jones, 2 Stra. 1049; Green
v. Bartram, 4 C. & P. 308; Rose v. Wilson, 1 Bing. 353; 8 J. B. Moore,

862, 8. C.; Weaver v. Bush, 8 T. R. 78; Tullay v. Reed, 1 C. & P. 6;
Adams v. Freeman, 12 Johns. 408.

3 Imason v. Cope, 5 C. & P. 193; Esp. on Evid. 156; Eyre v. Norswor-
thy, 4 C. & P. 502; Simpson v. Morris, 4 Taunt. 821; Bush v. Parker, 1
Bing. N. C. 72.
92 LAW OF EVIDENCE. [PART IV.

feasible title;! and in such cases a temporary right of pos-
session is sufficient. Thus, where no person dwelt in the
house, but the defendant’s servant had the key, to let himself
in to work, this was held sufficient evidence of the defend-
ant’s possession, as against every one but the owner? So,
where a County Jail, the title to which was vested by statute
in the Justices of the county, was in the actual occupancy of
the stewards of a musical festival, as it had been on similar
occasions, as they occurred, for several years, but there was
no evidence of any express permission from the Justices, yet
this was held a sufficient possession, against a person intrud-
ing himself into the hall without leave.

§ 99. If the assault and battery is justified, as done to pre-
serve the peace, or to prevent a crime, the defendant must
show that‘the plaintiff was upon the point of doing an act,
which would have broken the peace, or would manifestly
have endangered the person of another, or was felonious ;*
and if the interference was to prevent others from fighting,
he must show that he first required them to desist.6 If the
‘vespass justified, consisted in arresting the plaintiff as a
felon without warrant, the defendant must prove, either that
a felony was committed by the plaintiff, in his presence; or,
that the plaintiff stood indicted of felony; or, that he was
found attempting to commit a felony; or, that he had actu-
ally committed a felony, and that the defendant, acting with
good intentions, and upon such information as created a
reasonable and probable ground of suspicion, apprehended
the party, in order to carry him before a magistrate’ It

 

1 Skeville v. Avery, Cro. Car. 188; Esp. on Evid. 156; 1 Saund. on Pl.
& Evid. 107.

2 Hall v. Davis, 2 C. & P. 33.

3 Thomas v. Marsh, 5 C. & P. 596.

4 Handcock v. Baker, 2 B. & P. 260.

5 Hawk. P. C. b. 1, ch. 31, § 49; 1 East, P. C. 804.

§ Hawk. P. C. b. 2, ch. 12, §§ 18, 19; 4 Bl. Comm. 293; 1 East, P. C. 300,
3015; 1 Russ. on Crimes, 728-725 ; 1 Deacon, Crim. Law, 48, 49; ‘Ledwith
v. Catchpole, Cald. 291, per Ld. Mansfield; Rex v. Hunt, 1 Mood. Cr. Cas.
98; Stonehouse v. Elliott, 6 T. R. 315.
PART IV.] ASSAULT AND. BATTERY. 93

seems also to have been held, that the defendant may in like
manner justify the detention of the plaintiff, as found walk-
ing about suspiciously in the nignt, until he gave a good
account of himself;1 or, because he was a common and
notorious cheat, going about the country and cheating by
playing with false dice and other tricks, being taken in the
fact, to be carried before a magistrate ; or, that he was found
in the practice of other offences, in the like manner scanda-
lous and prejudicial to the public?

§ 100. Jt is further to be observed, that, whenever the de-
fendant justifies the laying of hands on the plaintiff, to take |
him into custody as an offender, he ought to be prepared
with evidence to show, that he detained him only until an
officer could be sent for to take charge of him, or that he
proceeded without unnecessary delay to take him to a magis-
trate, or peace-officer, or otherwise to deal with him accord-.
ing to law? ,

Defences by magistrates and other officers will be treated
hereafter, under appropriate heads.

 

1 Hawk. P. C. b. 2, ch. 12, § 20. But this is now doubted, unless the
defendant is a peace-officer. 1 East, P. C. 303; 1 Russ. on Crimes, 726,
727.

2 Hawk. P. C. b. 2, ch. 12, § 20; Holyday v. Oxenbridge, Cro. Car. 234;
W. Jones, 249, 8. C.; 2 Roll. Abr. 546.

3 Esp. on Evid. 158; Rose v. Wilson, 1 Bing. 353:
94 LAW OF EVIDENCE. [PART Iv.

ASSUMPSIT.

§ 101. Unpsr this head, it is proposed to consider only
those matters which pertain to this form of action, for what-
ever cause it may be brought, and to the common counts ;
referring, for the particular causes of special assumpsit, such
as Bills of Exchange, Insurance, &c., and for parficular is-
sues in this action, such as Infancy, Payment, and the like,
to their appropriate titles.

§ 102. The distinction between general or implied contracts
and special or express contracts, lies not in the nature of the
undertaking, but in the mode of proof. The action of as-
sumpsit is founded upon an undertaking, or promise of the
defendant, not under seal and the averment always is, that
he undertook and promised to pay the money sued for, or
to do the act mentioned. The evidence of the promise may
be direct, or it may be circumstantial, to be considered and
weighed by the Jury; or the promise may be imperatively
and conclusively presumed by law, from the existing relations
proved between the parties ; in which case, the relation being
proved, the Jury are bound to find the promise. Thus, where
the defendant is proved to have in his hands the money of

‘the plaintiff, which, ex equo et bono, he ought to refund, the

law conclusively presumes that he has promised so to do,
and the Jury are bound to find accordingly ; and, after ver-
dict, the promise is presumed to have been actually proved.

§ 103. The law, however, presumes a promise only where
it does not appear that there is any special agreement between
the parties! For if there is a special contract, which is still

 

1 Toussaint v. Martinnant, 2 T. R. 105, per Buller, J.; Cutter v. Powell,
6 T. RB. 320.
PART IV.] ASSUMPSIT. 95

open and unrescinded, embracing the same subject-matter.
with the common counts, the plaintiff, though he should fail

to prove his case under the special count, will not be per-

mitted to recover upon the common counts! Thus, where

the plaintiff paid seventy guineas for a pair of coach-horses,

which the defendant agreed to take back if the plaintiff
should disapprove them; and being dissatisfied with them,

he offered to return them, but the defendant refused to receive

them back; it was held, that the plaintiff could not recover

the amount paid in an action for money had and received,

but should declare upon the special contract.2. So, where a

seaman shipped for a voyage out and home, with a stipula-

tion that his wages should not be paid until the return of the

ship, and he was wrongfully discharged in a foreign port ; it

was held, that he could not recover upon the common counts,

but must sue for breach of the special contract, it being still

in force? But though there is a count on a special agree-

ment, yet if the plaintiff fails altogether to prove its existence,

he may then proceed upon the common counts.’

§ 104. The law on this subject may be reduced to these
three general rules (1). So long as the contract continues
executory, the plaintiff must declare specially; but when it
has been executed on his part, and nothing remains but the

 

1 Cooke v. Munstone, 1 New Rep. 365; Bull. N. P. 139; Lawes on
Assumpsit, pp. 7, 12; Young v. Preston, 4 Cranch, 239; Russell v. South
Britain Society, 9 Conn. 508; Clark v. Smith, 14 Johns. 826; Jennings v.
Camp, 13 Johns. 94; Wood v. Edwards, 19 Johns. 205; [Sargent v. Adams,
3 Gray, 72; Streeter v. Sumner, 19 N. H. 516.]

2 Weston v. Downes, 1 Doug. 23; Power v. Wells, Cowp. 818; Towers
v. Barrett, 1 T. R. 133,

8 Hulle v. Heightman, 2 East, 145.

4 Harris v. Oke, Bull. N. P. 139; Paine v. Bacomb, 2 Doug. 651; 1 New
Rep. 355, 356.

5 See Lawes on Assumpsit, p. 2-12. See also Mead v. Degolyer, 16
Wend. 637, 638, per Bronson, J.; Cooke v. Munstone, 1 New Rep. 355;
Bull. N. P. 139; Tuttle v. Mayo, 7 Johns. 132; Robertson v. Lynch, 18
Johns. 451; Linningdale v. Livingston, 10 Johns. 36; Keyes v. Stone, 5
Mass. 391; Jennings v. Camp, 18 Johns. 94; Clark v. Smith, 14 Johns.
326.
96 LAW OF EVIDENCE. [PART Iv-

payment of the price in money, by the defendant, which is
nothing more than the law would imply against him, the
plaintiff may declare generally, using the common counts, or
may declare specially on the original contract, at his election."
If the mode of payment was any other than in money, the
count must be on the original contract. And if it was to be
in money, and a term of credit was allowed, the action,
though on the common counts, must not be brought until
the term of credit has expired. This election to sue upon the
common counts, where there is a special agreement, applies
only to cases where the contract has been fully performed by
the plaintiff. (2.) Where the contract, though partly per-
formed, has been either abandoned by mutual consent, or
rescinded and extinct by some act on the part of the defend-
ant. Here, the plaintiff may resort to the common counts
alone, for remuneration for what he has done under the spe-
cial agreement. But in order to this, it is not enough to
prove, that the plaintiff was hindered by the defendant from
performing the contract on his part; for we have just seen,
that in such case he must sue upon the agreement itself. It
must appear, from the circumstances, that he was at liberty
to treat itas at an end.? (8). Where it appears, that what
was done by the plaintiff, was dane under a special agree-
ment, but not in the stipulated time or manner, and yet was
beneficial to the defendant, and has been accepted and en-
joyed by him. Here, though the plaintiff cannot recover

 

! Gordon v. Martin, Fitzg. 303; Paine v. Bacomb, 2 Doug. 651, cited 1
New Rep. 355, 356; Streeter v. Horlock, 1 Bing. 34,37; Study v. San-
ders, 5 B. & C. 628, per Holroyd, J.; Tuttle v. Mayo, 7 Johns. 132; Rob-
ertson v. Lynch, 18 Johns. 451; Felton v. Dickenson, 10 Mass. 287; Baker
v. Corey, 19 Pick. 496 ; Pitkin v. Frink, 8 Met. 16; [New Hampshire, &e.
Ins. Co. v. Hunt, 10 Foster, (N. H.) 219; Hale v. Handy, 6 Ib. 206; Wright
v. Morris, 15 Ark. 444.]

.2 Robson v. Godfrey, 1 Stark. R. 220; [Moorhead cv. Fry, 24 Penn. State
R. (12 Harris,) 37.]

8 Giles v. Edwards, 7 T. R. 181; Burn v. Miller, 4 Taunt. 745; Hulle v.
Heightman, 2 East, 145; Linningdale v. Livingston, 10 Johns. 36; Ray-
mond v. Bearnard, 12 Johns. 274; Mead v. Degolyer, 16 Wend. 632; [Can-
ada v. Canada, 6 Cush. 15.]
PART IV.] ASSUMPSIT. 97

upon the contract, from which he has departed, yet he may
recover, upon the common counts,! for the reasonable value
of ‘the benefit which, upon the whole, the defendant has
derived from what he has done.”

§ 105. In all actions upon contracts not under seal, except
generally in suits by indorsees, it is incumbent on the plain;
tiff under the general issue, to prove a consideration ® for the
alleged promise of the defendant; and this, in actions upon
the common counts, can ordinarily be done only by proof
of all the circumstances of the transaction. Thus, proof of
the relation of landlord and tenant, is sufficient proof of con-
sideration for a promise to manage the farm in a husband-
like manner.*| And this manner is proved by evidence of the
prevalent course of husbandry in that neighborhood.’ The
same evidence will also, necessarily, disclose a privity existing
between the defendant and the plaintiff; for if the plaintiff is

 

1 Keck’s case, Bull. N. P. 139; Burn ». Miller, 4 Taunt. 745; Streeter
v. Horlock, 1 Bing. 34, 87; Jennings v. Camp, 13 Johns. 94; Jewell v.
Scroeppel, 4 Cowen, R. 564. If the contract has been performed, as far as
it extended, but something beyond it has been done, as, if a building were
erected, with some additions not specified in the written agreement, the
party must declare on the special agreement, as far as it goes, and in the
common counts for the excess. Pepper v. Burland, Peake’s Cas. 103; Dunn
v. Body, 1 Stark, R. 175; Robson v, Godfrey, Id. 220.

2 Taft v. Montague, 14 Mass. 282. In an action for work and materials,
where it appears that they were furnished pursuant to an express contract,
the plaintiff must prove the terms of the contract. He cannot in the first
instance abandon the contract, and recover on a quantum meruit ; but must
prove its terms, its fulfilment, the deviations, if any, and the additional work.
Smith v. Smith, 1 Sandf. S. C. R. 206; [White v. Oliver, 36 Maine, (1
Heath,) 92; Davis v. Barrington, 10 Foster, (N. H.) 517; Hubbard »v.
Belden, 1 Williams, (Vt.) 645; Patrick v. Putnam, Ib. 759; Bassett v. San-
born, 9 Cush. 58; Gleason v. Smith, Ib. 484.] :

3 As to what constitutes a sufficient consideration, see 21 Amer. Jurist,
257-286; 1 Stephen’s Nisi Prius, pp. 240-260; Chitty on Contr. 22-55;
2 Kent, Comm. 463-468; Story on Contracts, ch. iv. That the entire con-
sideration must be proved, see ante, Vol. 1, §§ 66, 67, 68.

4 Powley v. Walker, 5 T. R. 373.

5 Leigh v. Hewitt, 4 East, 154.

VOL. IL. 9
98 LAW OF EVIDENCE. [PART Iv.

a stranger to the consideration, he cannot recover.’ And in
all these cases the plaintiff may recover as much as he proves
to be due to him, within the sum mentioned in the count. « If
the contract is in writing, and recites that a valuable consid-
eration has been received, this is primd@ facie evidence of the
fact, and the necessity of controlling it is devolved on the
defendant. If the action is founded on a document or mem-
orandum, usually circulating as evidence of property, such as
a bank-check, or the like, proof of the usage and course of
business may suffice as evidence of the consideration, until
this presumption is outweighed by opposing proof.

 

1 The common counts are in this form: — ‘for that the said (defendant) ©
on the —— day of was indebted to the plaintiff in the sum of ”Tif
for goods sold, say, —“ for goods then sold and delivered,” — or, “ bargained
and sold,” if the case be so, —“ by the plaintiff to the said (defendant) at
his request,”] ‘‘and in consideration thereof, then and there promised the
plaintiff to-pay him that sum on demand. Yet,” &c.

— [if for work and materials, say, — “ for work then done and materials for
the same provided, by the plaintiff for the said (defendant) at his request,’”—]
—[if money lent, say, —“ for money then lent by the plaintiff to the said
(defendant) at his request,” — ]

— [if for money paid, say, —“ for money then paid by the plaintiff for the
use of the said (defendant) at his request,” — ]

 

 

—[if for money received, say, —“‘ for money then received by the said (de-
fendant) for the use of the plaintiff, —”]
—[if upon an insimul computassent, say, —“ for money found to bé due from

the said (defendant) to the plaintiff, upon an account then stated between
them,” — ]

These counts may now, by the new rules of practice in the English
Courts, and by those of some of the American States, be consolidated into
one. Indeed it is conceived, that they may be consolidated by the general
principles ‘of the law of pleading; and it was so practised in Massachusetts,
for many years. The consolidated count may be as follows: — “ for that the
said (defendant) on the day of was indebted to the plaintiff in
the sum of for goods then sold and delivered by the plaintiff to the
said (defendant) at his request; and in the sum of for work then
done, and materials for the same provided by the plaintiff for the said (de-
fendant) at his request;— and in the sum of for money then lent by
the plaintiff to the said (defendant) at his request ;— and in the sum of
for money then paid by the plaintiff for the use of the said (defendant) at
his request ;— and in the sum of —— for money then received by the said

 

 

 

 

 

 
| \ |

N

PART Iv.] ASSUMPSIT. 99

§ 106. As the general issue is a traverse of all the material
allegations in the declaration, it will be further necessary for
the plaintiff, under this issue, to prove all the other material
facts alleged; such as the performance of conditions prece-
dent, if any, on his own part; notice to the defendant; re-
quest; where these are material, and the like; together with
the amount of damages sustained by the breach of the agree-
ment. Damages cannot, in general, be recovered beyond the
amount of the ad damnum laid in the declaration; but in
actions for torts to personal chattels, the Jury are not bound
by the value of the goods, as alleged in the count, but may
find the actual] value, if it do not exceed the ad damnum.)

§ 107. In actions upon the common counts for goods sold,
work and materials furnished, money lent, and money paid.
a request by the defendant is material to be proved ;? for,

 

(defendant) for the use of the plaintiff; — and in the sum of —— for money
found to be due from the said (defendant) to the plaintiff, upon an account
then stated between them; and in consideration thereof then and there
promised the plaintiff to pay_him the several moneys aforesaid upon de-
mand. Yet the said (defendant) has never paid any of said moneys, but
wholly neglects so to do.” See 1 Chitty’s Prec. p. 43, a,b; Reg. Sup.
Jud. Court, Mass. 1836, p. 44. Where the declaration alleges a debt for
work and labor, and a debt for goods sold, &c., with one general promise to
pay, the statement of each debt is regarded as a separate count ; but where
there is only one statement of debt, though founded on several considera-
tions, it is one count only. Morse v. James, 11 M. & W. 831.

1 Steph. on Pl. 318 ; Hutchins v. Adams, 38 Greenl.174; Pratt v. Thomas,
Ware’s Rep. 427; The Jonge Bastiaan, 5 Rob., Adm. 322. [And where
the declaration contains proper counts in assumpsit, the action can be main-
tained, and it is immaterial whether the breach is or is not alleged or proved
to have been caused by tortious acts, which would have enabled the plaintiff
to maintain an action ex delicto. Rich v. Jones, 9 Cush. 329.]

2 It has, however, recently been held, that in an indebitatus assumpsit for
money lent, and perhaps in a count for goods sold and delivered, a request
need not be alleged ; though it is otherwise in a count for money paid. Vic-
tors v. Davis, 1 Dow]. & L. 984. In those cases, a request is involved in the
nature of the transaction. [Where corn is sold and is left in a heap with
corn of the vendor in the possession of the vendor, the purchaser cannot
maintain assumpsit for its value, no express promise being shown. Waldron
v. Chase, 37 Maine, 414. Nor will assumpsit lie for goods sold and deliv-
100 LAW OF EVIDENCE. [PART IV.

ordinarily, no man can make himself the creditor of another
by any act of his own, unsolicited, and purely officious. Nor
is a mere moral obligation, in the ethical sense of the term,
without any pecuniary benefit to the party, or previous re-
quest, a sufficient consideration to support even an express
promise ; unless where a legal obligation once existed, which
is barred by positive statute, or rule of law, such as the stat-
ute of limitations, or of bankruptcy, or the law of infancy,
coverture, or the like. But where the act done is beneficial

 

ered unless there has been a delivery. Evans v. Harris, 19 Barb. 416; Dore-
tous v. Howard, 8 Zabr. 890; Messer v. Woodman, 2 Foster, (N. H.) 389.]

1 Chitty on Contracts, p. 40-42; Story on Contr. § 143; 1 Steph. N. P.
246-249; Eastwood v. Kenyon, 11 Ad. & El. 488; Ferrers v. Costello,
1 Longf. & Towns, 292; [Mellen v. Whipple, 1 Gray, 317.] So, where the
drawer of a bill of exchange had not been duly notified of its dishonor, but
nevertheless promised the holder that he would pay it, the promise was held
binding. Rogers v. Stephens, 2 T. R. 713; Lundie v. Robertson, 7 East,
2313; Story on Bills, § 320. See also Duhammel v. Pickering, 2 Stark. R.
90. The nature of the moral obligation referred to in the text, is thus stated
in a lucid and highly instructive series of articles on the Law of Contracts,
attributed to Mr. Justice Metcalf. “ It is frequently asserted in the books,
that a moral obligation is a sufficient consideration for an express promise,
though not for an implied one. The terms ‘ moral obligation,’ however, are
not to be understood in their broad ethical sense; but merely to denote
those duties, which would be enforced at law, through the medium of an
implied promise, if it were not for some positive rule, which, with a view to
general benefit, exempts the party, in the particular instance, from legal
liability. °

“ A promise to pay a debt barred by the statute of limitations, or dis-
charged under a bankrupt law, falls into this class of cases. So of an adult’s
promise to pay a debt contracted during his infancy, and of a borrower’s
promise to pay principal and lawful interest of a sum loaned to him ona
usurious contract; and of a widow to pay a debt, or fulfil other contracts
made during coverture. So of a promise by the drawer of a bill of ex-
change, or the indorser of a bill or note, to pay it, though he has not received
seasonable notice of the default of other parties. So of a promise by a lessor
to pay for repairs made by a lessee, according to agreement, but not inserted
in the lease; and a promise to refund money received in part payment of a
debt, the evidence being lost, and the whole original debt having, in conse-
quence of the loss, been recovered by a suit at law.

“In the foregoing cases, there was a good and sufficient original consider-
ation. for a promise, — a contract on which an action might have been sup-
7
101

to the other party, whether he was himself legally bound to
have done it or not, his subsequent express promise will be
binding; and even his subsequent assent will be sufficient
evidence, from which the Jury may find a previous request,
and he will be bound accordingly. Thus, where an illegiti-
mate child was put at nurse by the mother’s friends, after
which the father promised to pay the expenses, it was held
by Lord Mansfield, that, as he was under an obligation to
provide for the child, his bare approbation should be con-
strued into a promise, and bind him.2 So, where two per-
sons were bail for a debtor, in several actions, and one of
them, to prevent being fixed for the debt, pursued the debtor
into another State, into which he had gone, and brought him
back, thereby enabling the other also to surrender him, efter

PART IV.] ASSUMPSIT.

 

ported, if there had not been a rule of law, founded on policy, (but wholly
unconnected with the doctrine of consideration,) which entitled the promisor
to exemption from legal liability. In most, if not all these cases, the rule,
which entitled the party to exemption, was established for his benefit. Such
benefit or exemption, he may waive; and he does waive it, by an express
promise to pay. The consideration of such promise is the original transac-
tion, which was beneficial to him, or detrimental to the other party.

“ These cases give no sanction to the notion, that an express promise is of
any binding validity, where there was nothing in the original engagement,
which the law regards as a legal consideration.” See American Jurist, Vol.
21, p. 276-278.

1 1 Saund. 264, note (1), by Williams; Yelv. 41, note (1), by Metcalf.
This principlé will reconcile some cases, which seem to conflict with the
general rule previously stated inthe text. Thus, in Watson v. Turner, Bull.
N. P. 129, 147, the overseers, who made the express promise, were legally
bound to relieve the pauper, for whose benefit the plaintiff had furnished
supplies. See 1 Selwyn, N. P. 50, note (11). So in Ld. Suffield v. Bruce,
2 Stark. R. 175, the money had really been paid to the defendant’s house by
‘mistake, and the defendant had received the benefit of the payment, and
was legally liable with the others to refund it, at the time of the promise.
And for aught that appears in the repoit, the promise of indemnity may
have been made at the time of the payment, and afterwards repeated in the
letter of the defendant. In Atkins v. Banwell, 2 East, 505, which was an
action between two parishes, for relief afforded to a pauper settled in the
defendant parish, there was neither legal nor moral obligation, nor express
promise, nor subsequent assent, on the part of the defendants. See also
Wing v. Mill, 1 B. & A. 104.

2 Scott v. Nelson, cited 1 Esp. N. P. 116.

9 *
102 LAW OF EVIDENCE. [PART Iv.

which the latter party promised the former to pay his pro-
portion of the expense of bringing the debtor back, this
promise was held binding; for the parties had a joint inter-
est in the act done, and were alike benefited by it.!

sk,

§ 108. It is not necessary for the plaintiff to prove an ex-
press assent of the defendant, in order to enable the Jury to
find a previous request ; they may infer it from his knowledge
of the plaintiff’s act, and his silent acquiescence Thus,
where the father knew where and by whom his minor daugh-
ter was boarded and clothed, but expressed no dissent, and
did not take her away; this was held sufficient evidence, on
the part of the plaintiff, to charge him for the expenses, unless
he would show that they were incurred against his consent.®
So, also, as is familiarly said, if one see another at work in
his’ field, and do not forbid him, it is evidence of assent, and
he will be holden to pay the value of his labor. And some-
times the Jury may infer a previous request, even contrary to
the fact, on ‘the ground of legal obligation alone ; as, in an
action against a husband for the funeral expenses of his wife,
he having been beyond seas at the time of her burial; or,
against executors, for the funeral expenses of the testator, for
which they had neglected to give orders. The law, how-
ever, does not ordinarily imply a promise, against the express
declaration of the party. Thus, a promise will not be implied,

1 Greeves v. McAllister, 2 Binn. 591. See also Seago v. Deane, 4 Bing.
459.

2 See 22 Amer. Jurist, p. 2-11, where the doctrine of the obligation of
promises, founded upon considerations executed and past, is very clearly
and ably expounded. See also Yelv. 41, note (1), by Metcalf; Doty v.
Wilson, 14 Johns. 378, 382, per Thompson, C. J. [The law will not raise
an implied contract, conferring authority to do an act, where there existed
no legal right to make an express contract authorizing such anact. Simpson
v. Bowden, 83 Maine, 549. See also Lewis v. Trickey, 20 Barb. 387.]

3 Nichole v. Allen, 3 C. & P. 36.

4 Jenkins v. Tucker, 1 H. Bl. 90; Tugwell v. Heyman, 8 Campb. 298;
10 Pick. 156. See also Alna v. Plummer, 4 Green]. 258; Hanover v. Tur-
ner, 14 Mass. 227.

5 [Whiling v. Sullivan, 7 Mass. 107.]
PART Iv.] ASSUMPSIT. 103

on the part of a judgment debtor, to pay for the use and
occupation of land taken from him by legal process, where
he denies the regularity of the proceedings.! But where there
is a legal duty, paramount to the will of the party refusing
to perform it, there, as we have before intimated, he is bound,
notwithstanding any negative protestation. Thus, if a hus-
band wrongfully turns his wife out of doors, or a father
wrongfully discards his child, this is evidence sufficient to
support a count against him in assumpsit, for their necessary
support, furnished by any stranger And if one commit a
tort on the goods of another, by which he gains a pecuniary
benefit, as if he wrongfully takes the goods and sells them,
or otherwise applies them to his own use, the owner may
waive the tort, and charge him in assumpsit on the common
counts, as for goods sold or money received, which he will
not be permitted to gainsay?

 

1 Wyman v. Hook, 2 Greenl. 337.

2 Robingon v. Gosnold, 6 Mod. 171; Valkinburg v. Watson, 13 Johns. 488 ;
20 Am. Jurist, p. 9; 22 Am. Jurist, p. 2-11; [Central Bridge Corp. v. Ab-
bott, 4 Cush. 474. And evidence that the husband had ordered a son of the
wife to leave his house, accompanied with harsh language, is admissible to
prove ill-treatment of the wife herself. Mayhew v. Thayer, 8 Gray, 172.]

3 [But if he resorts to one of the remedies and fails to recover at all
on the merits of the case, or recovers inadequate damages, he cannot after-
wards resort to another action, though of a different species, to recover
damages for the same injury. Burnett v. Smith, 4 Gray, 50.] The prop-
osition in the text is stated in general terms by Jackson, J., in Cum-
mings v. Noyes, 10 Mass. 436, and by Mellen, C. J., in Webster ».
Drinkwater, 5 Greenl. 823. The propriety of its application against. the
administrator of the wrongdoer, was first established in Hambley v. Trott,
Cowp. 372; and has since been admitted without hesitation. Cravath v.
Plympton, 13 Mass. 454. It has in several cases been said to apply only to
the case of money actually received on sale of the property wrongfully con-
verted. But in others it has been further applied so as to entitle the plaintiff
to recover for the beneficial use of the thing taken; Chauncey v. Yeaton,
1 N. Hamp. R. 451; 5 Greenl. 323; and for the services of’ his apprentice,
seduced by the defendant; Lightly v. Clouston, 1 Taunt. 112; Foster v..
Stewart, 3 M. & S. 191; and to the case where the defendant had received,
not money, but a promissory note, for the price of the goods sold. Miller v.
Miller, 7 Pick. 133. And in other cases, the owner has been permitted to
recover in this form of action, where the goods had not been sold by the
defendant, but had been actually applied and converted by him to his own
104 LAW OF EVIDENCE. [PART Iv.

§ 109. In regard to the privity necessary to be established
between the parties, it is in general true, that an entire
stranger to the consideration, namely, one who has taken
no trouble or charge upon himself, and has conferred no
benefit upon the promisor, cannot maintain the action in
his own name. But it has been said, and after some con-
flict of opinion it seems now to be settled, that in cases of
simple contract, if one person makes a promise to another,
for the benefit of a third, the latter may maintain an action
upon it, though the consideration did not move from him.1

 

benejicial use. Hitchin v. Campbell, 2 W. Bl. 827; 2 Pick. 285, note;
Johnson v. Spiller, 1 Doug. 167, note; Smith v. Hodson, 4 T. R. 211; Hill
v. Davis, 3 N. Hamp. R. 384. In Jones v. Hoar, 5 Pick. 285, where assump-
sit was held not to lie for the value of' timber-trees cut down upon the plain-
tift’s land, and carried away, it does not appear that the defendant had
either sold the trees, or in any manner applied them to his own benefit. In
Appleton v. Bancroft, 10 Met. 231, the officer was held liable, in assumpsit
for money had and received, where he had sold the goods, but had received
nothing in payment ; it being his duty to sell for ready money. [Boston and
Worcester R. R. Corp. v. Dana, 1 Gray, 83. And where money or goods
have been feloniously taken, the action of money had and received will lie
against the wrongdoer, before criminal proceedings have been instituted
against him. Boston and Worcester R. R. Corp. v. Dana, 1 Gray, 83. See
aliter Belknap v. Milliken, 23 Maine, 381.]

1 1 Com. Dig. 205, Action upon the Case upon Agsumpsit, E.; 1 Vin. Abr.
333, pl. 5; Id. 334, 335, pl. 8; Dutton v. Poole, 1 Vent. 318, 332; 2 Lev.
210, 8. C.; T. Raym. 302, 8S. C., cited and approved by Lord Mansfield,
Cowp. 443; 3 B. & P. 149, note (a); Marchington v. Vernon, 1 B. & P.
101, note (c) ; Rippon v. Norton, Yelv. 1; Whorewood v. Shaw, Yelv. 25,
and note (1) by Metcalf; Carnegie v. Waugh, 2D. & R. 277; Garrett v.
Handley, 4 B. & C 664; Hall v. Marston, 17 Mass. 575, 579; Id. 404, per
Parker, C. J.; Cabot v. Haskins, 3 Pick. 83, 92. See also 8 Johns. 58;
13 Johns. 497; 22 Amer. Jurist, p. 16-19; 11 Mass. 152, note (a), by
Rand; Bull. N. P. 133; Chitty on Contr. p. 45-48. [The maxim that
‘ona promise not under seal made by A to B for a good consideration to
pay B’s debt to C, C may sue A,’ requires great modification, because it ex-
presses an exception to the general rule, rather than the rule itself. By the
recent decisions of the English Courts, its operation is restricted within nar
rower limits than formerly ; and the general rule is now more strictly en-
forced. That general rule is and always has been that a plaintiff in an
action on a simple contract, must be the person from whom the consideration
of the contract actually moved, and that a stranger to the consideration
cannot sue on the contract. The rule is sometimes thus expressed: There
PART IV.] ASSUMPSIT. 105

It seems, also, that the action may be maintained by either
party.!

 

must be a privity of contract between the plaintiff and the defendant
in order to render the defendant liable to an action, by the plaintiff, on the
contract. Crow v. Rogers, 1 Stra. 592; Ross v. Milne, 12 Leigh, 204; Mor-
rison v. Beckey, 6 Watts, 349; 1 Selw. N. P. (11th ed.) 49. The excep-
tions to this rule are included in the above maxim, and some of them may
be included in three distinct classes.

“1, Indebitatus assumpsit for money had and received can be maintained
in various instances, where there is no actual privity of contract between
the plaintiff and defendant, and where the consideration does not move
from the plaintiff. In some actions of this kind a recovery has been had,
where the promise was to a third person for the benefit of the plaintiff; such
action being an equitable one, that can be supported by showing that the
defendant has in his hands money which, in equity and good conscience,
belongs to the plaintiff, without showing a direct consideration moving from
him, or a privity of contract between him and the defendant.

“Most of the cases in this first class, are those in which A has put money
‘or property in B’s hands as a fund from which A’s creditors are to be paid,
and B has promised, either expressly, or by implication from his acceptance
of the money or property without objection to the terms on which it was
delivered to him, to pay such creditors. In such cases, the creditors have
maintained actions against the holder of the fund. Disborn v. Denaby, 1
D’Anv. Ab. 64; Starkey v. Mill, Style, 296; Ellwood v. Monk, 5 Wend.
235; Delaware and Hudson Canal Co. v. Westchester County Bank, 4
Denio, 97; Fleming v. Alter, 7S. & R. 295; Beers v. Robinson, 9 Barr.
229. The cases in Massachusetts, which clearly fall into this class, are Ar-
nold v. Lyman, 17 Mass. 400, recognized in Fitch v. Chandler, 4 Cush. 255;
Hall v. Marston, 17 Mass. 575; and Felch v. Taylor, 13 Pick. 133. On
close examination, the case of Carnegie and another v. Morrison and an-
other, 2 Met. 381, will be found to belong to the same class. The Chief Jus-
tice there’ said : ‘ Bradford was indebted to the plaintiffs, and was desirous
of paying them. He had funds, either in cash or credit, with the defend-
ants, and entered into a contract with them to pay a sum of money for him
to the plaintiffs. And upon the faith of that undertaking he forbore to
adopt other measures to pay.the plaintitts’ debt.’

“ By the recent English decisions, however, one to whom money is trans-
mitted, to be paid to a third person, is not liable to an action by that person,
unless he has expressly agreed to pay him. And such was the opinion of
Spencer, J.,in Weston v. Barker, 12 Johns. 282. See the English cases col-
lected in 1 Archb. N. P. (Amer. ed. 1848,) 121-125.

1 Bell v. Chaplain, Hardr. 321; 1 Chitty on Plead. p. 5; 22 Am. Jurist,
p. 19; Hammond on Parties, pp. 8, 9; Skinner v. Stocks, 4 B. & Ald. 497.
See also Story on Agency, §§ 393, 394.
106 LAW OF EVIDENCE. [PART Iv.

§ 110. Where there are several plaintiffs, it must be shown
that the contract was made with them all; for if all the
promisees do not join, it is a ground of nonsuit. So, if too
many should joint And where the plaintiff sues in a par-
ticular capacity, as assignee of a bankrupt,’ or surviving part-

 

“2. Cases where promises have been made toa father or uncle, for the ben-
efit of a child or nephew, form a second class, in which the person for whose
benefit the promise was made has maintained an action for the breach of it.
The nearness of the relation between the promisee and him for whose benefit
the promise was made, has been sometimes assigned as a reason for these
decisions. And thoygh different opinions, both as to the correctness of the
decisions, and as to this reason for them, have often been expressed by Eng-
lish Judges, yet the decisions themselves have never been overruled, but are
still regarded as settled law. Dutton v. Poole, 1 Vent. 318, is a familiarly
known case of this kind, in which the defendant promised a father, who was
about to fell timber for the purpose of raising a portion for his daughter,

-that if he would forbear to fell it, the defendant would pay the daughter
£1000. ‘he daughter maintained an action on this promise. Several like
decisions had been previously made. Rookwood’s case, Cro. Eliz. 164; Old-
ham v. Bateman, 1 Roll. Ab. 31; Provender v. Wood, Hetl. 30; Thomas's
case, Style, 461; Bell v. Chaplain, Hardr. 321. These cases support the
decision of this Court in Felton v. Dickinson, 10 Mass. 287.

“3. The last casein this Commonwealth, which was cited in support of the
present action, is Brewer y. Dyer, 7 Cush. 337. In that case the defendant
gave to the lessee of a shop a written promise to take the lease and pay to the
lessor the rent, with the taxes, according to the terms of the lease. The de-
fendant entered into possession of the shop, with the knowledge of the lessor,
and paid the rent to him for a year, and then left the shop. And it was de-
cided that he was liable to the lessor for the subsequently accruing rent, and
for the taxes, on his promise to the lessee.” Mellen v. Whipple, 1 Gray, 317.

So where land was conveyed by deed poll, subject to a mortgage previ-
ously ma:le by the grantor, and the deed recites that the sum secured by the
mortgage is part of the consideration of the deed, and that the deed is on
the condition that the grantee therein shall assume and pay the mortgage-
debt anil the interest thereon, as they severally become due and payalile;
and the grantee enters upon and holds the estate and does not pay the inter-
est when it falls due; the grantor, after paying the interest on the demand
of the mortgagee may maintain assumpsit against the grantee to recover the
amount so paid. Pike v. Brown, 7 Cush. 183; see also Goodwin v. Gilbert,
9 Mass. 510; Felch v. Taylor, 13 Pick. 183; see also King v. Hutchins, 8
Foster, (N. H.) 561.

% Chitty on Plead. 6-8, 15. Brand v. Boulcott, 2 B. & P. 235.

2 1 Saund. on Plead. and Evid. 250-289.
PART IV.] ASSUMPSIT. 107

ner, he must, under the general issue, prove his title to sue in
that capacity. But the plaintiff need not, under the general
issue, be prepared to prove that the contract was made with
all the defendants; as the non-joinder of defendants can or-
dinarily be taken advantage of only by a plea in abatement.?

§ 111. It must also appear, on the part of the plaintiff, that
the contract was not unlawful. For if it appears to have for
its object anything forbidden by the laws of God; or, con-
trary to good morals; or, if it appears to be a contract to do
or omit, or to be in consideration of the doing or omission of
any act, where such doing or omission is punishable by crim-
inal process ;. or, if it appears to be contrary to sound public
policy ; or, if it appears to be in contravention of the provis-
ions of any statute ; in any of these cases, the plaintiff cannot
recover, but upon his own showing, may be nonsuited. Fr '
the law never lends its aid to carry such agreements into
effect, but leaves the parties, as it finds them, in pari delicto.
But though the principal contract were illegal, yet if money
has been advanced under it by one of the parties, and the
contract still remains wholly executory, and not carried into
effect, he may recover the money back upon the common
money counts; for the policy of the law, in both cases, is to
prevent the execution of illegal contracts; in the one case,
by refusing to enforce them, and in the other, by encouraging
the parties to repent and recede from the iniquitous enter-
prise. And the same rule is applied to cases, where, though
the contract is executed, the parties are not in pari delicto ;

 

1 Wilson v. Hodges, 2 East, 312. a

2 1 Chitty on Plead. 31-33, 52.

3 See Chitty on Contracts, p. 513-561; 22 Am. Jurist, p. 249-277;
23 Am. Jurist, p. 1-23; Story on Contracts, ch. v. vi.; Greenwood v. Curtis,
6 Mass. 381; Pearson v. Lord, Id. 84; Worcester v. Eaton, 11 Mass. 368;
Merwin v. Huntington, 2 Conn. 209; Babcock v. Thompson, 3 Pick. 446 ;
Burt v. Place, 6 Cow. 431; Best v. Strong, 2 Wend. 319; Gregg v. Wyman,
4 Law Rep. 361, N. S., where the cases are collected. Niver v. Best, Id.
183.

4 Chitty on Contracts, pp. 498, 499; Tappenden ». Randall, 2 B. & P. 467;
Aubert v. Walsh, 3 Taunt. 277; Parking p. Savage, 15 Wend. 412; Waite
v. Franklin Bank, 22 Pick. 181, 189.
108 LAW OF EVIDENCE. [PART IV.

the money having been obtained from the plaintiff by some
undue advantage taken of him, or other wrong practised by
the defendant.

§ 112. In proof of the count for money lent, it is not suffi-
cient merely to show that the plaintiff delivered-money, or
a bank-check, to the defendant; for this, primé facie, is only
evidence of the payment by the plaintiff of his own debt,
antecedently due to the defendant.2 He must prove that the
transaction was essentially a loan of money. If it wasa loan
of stock, this evidence, it seems, would not support the count.?
But money deposited with a banker, by a customer, in ‘the
usual way, has been held to be money lent. A promissory
note is sufficient evidence of a loan, between the original
parties ; even though it be payable on condition, if the con-
dition has been performed; or be payable in specific articles,
if the special promise is broken.? Indeed a bill of exchange
or promissory note, seems now to be considered as primd facie
proof of the money counts, in any action between the imme-
diate parties, whether they were original parties, or subse-
quent, as indorsees or bearers, claiming against the original
drawers or makers. So, if the plaintiff has become the

 

1 Thid. ; Worcester v. Eaton, 11 Mass. 376 ; Walker v. Ham, 2 N. Hamp.
241; Amesbury Man. Co. v. Amesbury, 17 Mass. 461; Preston v. Boston,
12 Pick. 7; Atwater v. Woodbridge, 6 Conn. 223; Chase v. Dwinel, 7
Greenl. 134; Richardson v. Duncan, 3 N. Hamp. 508; Clinton v. Strong,
9 Johns. 370; Mathers v. Pearson, 13 8. & R. 258. [If the plaintiffs have
been guilty of laches, in asserting their rights, they cannot maintain an
action for money had and redeived. Mercantile Marine Ins. Co. v. Cor-
coran, 1 Gray, 76.]

2 Welsh v. Seaborn, 1 Stark. R. 474; Cary v. Gerish, 4 Esp. 9; Cushing
v. Gore, 15 Mass. 74. If the money was delivered by a parent to a child,
it will be presumed an advancement, or gift. Per Bayley, J., in Hick v.
Keats, 4 B. & C. 71.

3 Nightingal v. Devisme, 5 Burr. 2589; Jones v. Brinley, 1 East, 1.

4 Pott v. Clegg, 11 Jur. 289; Pollock, C. B., dubitante. But see 11 Jur.
157, 158.

6 Payson v. Whitmarsh, 15 Pick. 212; Smith v. Smith, 2 Johns. 235:;
Crandall v. Bradley, 7 Wend. 811.

6 Bayley on Bills, p. 890-398, and notes, by Phillips and Sewall; Young
PART IV.| ASSUMPSIT. 109

assignee of a debt, with the assent of the debtor, this is equiv-
alent to a loan of the money! So, if A owes a sum definite
and certain to B; and B owes the same amount to C, and the
parties agree that A shall be debtor to C in B’s stead, this is
equivalent to a loan by C to A? This is an exception to the
general rule of law, that a debt cannot be assigned; and is
permitted only where the sum is ascertained and defined
beyond dispute?

§ 113. To sustain the count for money paid, the plaintiff
must prove the actual payment, and the defendant’s prior
request so to do, or his subsequent assent and approval of the
act, to be shown in the manner and by the methods already
stated. And if the money has been paid by the defendant’s
request, with an undertaking express or implied, on his part,
to repay the amount, it is immaterial whether the defendant
has been relieved from liability or otherwise profited by the
payment, or not.6 Whether the plaintiff can recover under

 

v. Adams, 6 Mass. 189; Pierce v. Crafts, 12 Johns. 90; Denn wv. Flack, 3
G. & J. 369; Wilde v. Fisher, 4 Pick. 421; Ramsdell v. Soule, 12 Pick.
126; Olcott v. Rathbone, 5 Wend. 490; Ellsworth v. Brewer, 11 Pick. 316;
Edgerton, v. Brackett, 11 N. Hamp. 218; Fairbanks v. Stanley, 6 Shepl.
296; Goodwin v. Morse, 9 Metc. 278; Moore v. Moore, Id. 417. But not if
the note is not negotiable, and expresses no value received. Saxton v.
Johnson, 10 Johns. 418. The defendant may make any defence to the note,
when offered under the money counts, which would be open to him, under
any other count. Austin v. Rodman, 1 Hawks, 195. But he can have no
other defence than would be open to him under a special count upon the
note. Hart v. Ayers,9 Ohio R.5. It has been held that an I O U, though
evidence of account stated, is not evidence of money lent. Fessenmayer v.
Adcock, 16 M. & W. 449.

11 Steph. N. P. 316; 2 Stark. Ev. 61. See Mowry v. Todd, 12 Mass.
281. If the contract assigned is a specialty, the rule is the same. Compton
v. Jones, 4 Cow. 13. But it has been questioned, whether asswmpsit lies, in
such case, without an express promise to the assignee. Dubois‘v. Double-
day, 9 Wend. 317. In this case there was not sufficient evidence to raise
even an implied promise.

2 Wade v. Wilson, 1 East, 795; Wilson v. Coupland, 5 B. & Ald. 228 ;
[Hamilton v. Starkweather, 28 Conn. 130.]

3 Fairlee v. Denton, 8 B. & C. 395.

4 Supra, §§ 107, 108.

5 Britain v. Lloyd, 14 M. & W. 762.

VOL. IL. 10
* 110 LAW OF EVIDENCE. [PART IV.

this count, without proof of the actual payment of money,
and by only showing that he had become liable, at all events,
to pay money for the defendant, is a point upon which there
has been some apparent conflict of decisions. It has been
held in England, that where the plaintiff had given his own
negotiable promissory note, which the creditor accepted as a
substitute for the debt due by the defendant, he was entitled
to recover the amount under this count, though the note still
remained unpaid And it has also been held, that, where he
had become liable for the debt by giving his bond, though he
thereby procured the defendant’s discharge, he could not
recover the amount from the defendant, until he had actually
paid the money due by the bond.? The latter rule has been
adopted and followed by the American Courts, on the ground,
that the bond is not negotiable, nor treated as money, in the
ordinary transactions of business,’ but they also hold, that
the giving of a bill of exchange or negotiable note, by the
plaintiff, which has been accepted by the creditor in satisfac-
tion of the defendant’s debt, is sufficient to support the count
for money paid If, however, the plaintiff has obtained a
discharge of his own liability by the payment of less than the
full amount, it has been held, that he can recover only the
sum actually paid.® And in regard to the mode of payment,

 

1 Barclay v. Gouch, 2 Esp. 571.

2 Taylor v. Higgins, 3 East, 169; Maxwell v. Jameson, 2 B. & Ald. 51;
Power v. Butcher, 10 B. & C. 329, 346, per Parke, J.

3 Cumming v. Hackley, 8 Johns. 202; 4 Pick. 447, per Wilde, J. And
see Gardner v. Cleveland, 9 Pick. 334. The entry of judgment on the
bond, and issuing of execution, does not vary the case. Morrison v. Berkey,
7S. & R. 238. Whether being taken in execution would, quere ; and see
Parker v. The United States, 1 Peters, C. C. R. 266.

4 Douglass v. Moody, 9 Mass. 553; Cornwall v. Gould, 4 Pick. 444; Pear-
son v. Parker, 3 N. Hamp. 366; 8 Johns, 206; Craig v. Craig, 5 Rawle, 91,
98, per Gibson, C. J.; Laplam v. Barnes, 2 Verm. 213; McLellan v. Crof-
ton, 6 Greenl. 331-333. And see Dole v. Hayden, 1 Greenl. 152; Ingalls
v. Dennett, 6 Greenl. 80; Clark v. Foxcroft, 7 Green]. 355; Van Ostrand
v. Reed, 1 Wend. 424; Morrison v. Berkey, 7S. & R. 238, 246; Beardsley
v. Root, 11 Johns. 464.

5 Bonney v. Seeley, 2 Wend. 481.
PART IV.] ASSUMPSIT. lil

proof of anything given and received as cash, whether it be
land or personal chattels, is sufficient to support this count.
If incidental damages, such as costs, and the like, have been
incurred by a surety, they can be proved only under a special
count;? unless the suit was defended at the request of the
principal debtor, and for his sole benefit, the defendant being
but a nominal party, such, for example, as an accommoda-
tion acceptor?

§ 114. If the money has been paid to a third person, in
compliance with a written order of the defendant in that
person’s favor, the possession of the order by the plaintiff
will generally be primd facie evidence, that he has paid the
money.! Where no express order or request has been given,
it will, ordinarily, be sufficient for the plaintiff to show, that
he has paid money for the defendant for a reasonable cause,
and not officiously’ Thus, this count has been sustained, for

 

1 Ainslee v. Wilson, 7 Cowen, 662, 669; Bonney v. Seeley, 2 Wend.
481; Randall v. Rich, 11 Mass. 498, per Parker, C. J.; [Floyd v. Day, 3
Mass. 403; Blaisdell v. Gladwin, 4 Cush. 378.]

2 Seaver v. Seaver, 6 C. & P. 673; Gillett v. Rippon, 1 M. & Malk. 406 ;
Knight v. Hughes, Id. 247; 3 C. & P. 466, 8. C.; Smith v. Compton, 3 B.
& Ad. 467.

3 Howes v. Martin, 1 Esp. 162.

4 Blunt v. Starkie, 1 Taylor, 110; 2 Hayw. 75, S. C.

5 Brown v. Hodgson, 4 Taunt. 190, per Mansfield, C. J.; Skillen v. Mer-
rill, 16 Mass. 40. ‘“* Whenever the consideration of a promise is executory,
there must, ex necessilate ret, have been a request on the part of the per-
son promising. For if A promise to remunerate B, in consideration that B
will perform something specified, that amounts to a request to B to perform
the act for which he is to be remunerated. See King v. Sears, 2 C. M. &
R. 53. Where the consideration is executed, unless there have been an
antecedent request, no action is maintainable upon the promise; for a re-
quest must be laid in the declaration and proved, if put in issue, at the trial.
Child v. Morley, 8 T. R. 610; Stokes v. Lewis, 1 T. R. 20; Naish v. Tat-
lock, 2 H. Bl. 319; Hayes v. Warren, 2 Str. 933; Richardson v. Hall, 1 B.
& B. 50; Durnford v. Messiter, 5 M. & 8. 446. See Reg. Gen. Hil. 1832,
pl. 8. For amere voluntary courtesy is not sufficient to support a subse-
quent promise ; but where there was previous request, the courtesy was not
merely voluntary, nor is the promise nudum pactum, but couples itself with
and relates back to the previous request, and the merits of the party, which
112 LAW OF EVIDENCE. [PART Iv.

money paid to relieve a neighbor’s goods from legal distraint,
in his absence ;! to defray the expenses of his wife’s funer-
al;? to apprehend the defendant, for whom the plaintiff had
become bail, and bring him to Court, so that he might be
surrendered ;° to discharge a debt of the defendant, for which
the plaintiff had become surety;* or for which the plaintiff’s
goods, being on the premises of the defendant, had been
justly distrained by the landlord;® or for money paid to
indemnify the owner for the loss of his goods, which the
plaintiff, a carrier, had by mistake delivered to the defendant,

 

were procured by that request, and is therefore on a good consideration.
Such request may be either express or implied. If it have not been made
in express terms, it will be implied under the following circumstances:
First, where the consideration consists in the plaintiff’s having been com-
pelled to do that to which the defendant was legally compellable. Jeffreys
v. Gurr, 2B. & Ad. 833; Pownall v. Ferrand, 6 B. & C. 439; Exall v.
Partridge, 8 T. R. 308; Toussaint v. Martinnant, 2 T. R.100. Secondly,
when the defendant has adopted and enjoyed the benefit of the considera-
tion; forin that case the maxim applies, omnis ratihabitio retrotrahitur et
mandato cequiparatur. Thirdly, where the plaintiff voluntarily does that.
whereunto the defendant was legally compellable, and the defendant after-
wards, in consideration thereof, expressly promises. Wennall v. Adney,
3 B. & P. 250, in notis; Wing v. Mill, 1 B. & A. 104; 8. N. P. 8 ed. p. 57,
n. 11; Paynter v. Williams, 1 C. & M.818. But it must be observed, that
there is this distinction between this and the two former cases, namely, that
in each of the two former cases, the law will imply the promise as well as the
request, whereas in this and the following case, the promise is not implied,
and the request is only then implied when there has been an express promise.
Atkins v. Banwell, 2 East, 505. Fourthly, in\certain cases, where the
plaintiff voluntarily does that, to which the defendant is morally, though not
legally, compellable, and the defendant afterwards, in consideration thereof,
expressly promises. See Lec v. Muggeridge, 5 Taunt. 36; Watson v. Tur-
ner, B. N. P. 129, 147, 281; Trueman v. Fenton, Cowp. 544; Atkins ».
Banwell, 2 East, 505. But every moral obligation is not, perhaps, sufficient
for this purpose. See per Lord Tenterden, C. J., in Littlefield v. Shee, 2
B. & Adol. 811.” See 1 Smith’s Leading Cases, p. 70, note.

1 Per Ld. Loughborough, 1 H. BI. 93. ;

2 Jenkins v. Tucker, 1 H. Bl. 90.

3 Fisher v. Fellows, 5 Esp. 171.

4 Exall v. Partridge, 8 T. R. 310, per Ld. Kenyon; Kemp v. Finden, 8
Jur. 65; [Blaisdell ». Gladwin, 4 Cush. 378.]

5 Exall v. Partridge, 8 T. R. 808.
PART Iv.] ASSUMPSIT. 118

who had consumed them for his own use.! So, where a
debt has been paid by one of several debtors, or by one of
several sureties, the payment is sufficient evidence in support
of this count against the others, for contribution? So, among
merchants, when one has accepted a protested bill for the
honor of one of the parties, which he has afterwards paid.’
And, in general, where the plaintiff shows that he, either by
compulsion of law, or to relieve himself from liability, or to
save himself from damage, has paid money which the de-
fendant ought to have paid, this count will be supported.

§ 115. If the money appears to have been paid in conse-

 

1 Brown v. Hodgson, 4 Taunt. 189, per Mansfield, C. J., and Heath, J.
But in Sills v. Laing, 4 Campb. 81, Ld. Ellenborough ruled that, in such
case, the plaintiff ought to declare specially.

2 1 Steph. N. P. 324-326.

3 Smith v. Nissen, 1 T. R. 259; Vandewell v. Tyrell, 1 Mood, & Malk. 87;
Story on Bills of Exchange, §§ 255, 256.

41 Steph. N. P. 324, 326; Lubbock v. Tribe, 3 M. & W. 607; Govvall
v. Edwards, 2 B. & P. 268; Alexander v. Vane, 1M. & W. 511; Grissell
v. Robinson, 3 Bing. N.- C. 10. “One of the cases in which an express
request is unnecessary, and in which a promise will be implied, is that in
which the plaintiff has been compelled to do that, to which the defendant
was legally compellable. On this principle depends the right of a surety
who had been damnified, to recover an indemnity from his principal. Tous-
saint v. Martinnant, 2 T. R. 100; Fisher v. Fellows, 5 Esp.171. Thus the
indorser of a bill, who has been sued by the holder, and has paid part of the
amount, being a surety for the acceptor, may recover it back as money paid
to his use and at his request. Pownall v. Ferrand, 6 B. & C. 439. But
then the surety must have been compelled, i. e. he must have been under a
reasonable obligation and necessity, to pay what he seeks to recover from
his principal; for if he improperly defend an action and incur costs, there
will be no implied duty on the part of his principal, to reimburse him those,
unless the action was defended at the principal’s request. Gillett v. Rippon,
1M. & M. 406; Knight v. Hughes, 1 M. & M. 247. See Smith v. Compton,
3 B.& Ad. 407. But if he make a reasonable and prudent compromise, he
will be justified in doing so.” 1 Smith’s Leading Cases, p. 70. If there were
several principals, and one surety has paid the debt, each is severally liable
for the whole sum. Duncan ». Keiffer, 3 Binn. 126. And where there are
several sureties, if one, by paying the debt too soon, has deprived the other of
an opportunity to relieve himself, he cannot have contribution. Skillin v.
Merrill; 16 Mass. 40.

10*
114 LAW OF EVIDENCE. [PART Iv.

quence of the plaintiff’s own voluntary breach of legal duty,
or, for a tort committed jointly with the defendant, it cannot
be recovered.! The general rule is, that wrongdoers shall
not have contribution one from another. The exception is,
that a party may, with respect to innocent acts, give an in-
demnity to another, which shall be effectual; though the
act, when it came to be questioned afterwards, would not be
sustainable in a court of law, against third persons who
complained of it. If one person induce another to do an act
which cannot be supported, but which he may do without
any breach of good faith, or desire to break the law, an action
on the indemnity, either express or implied, may be sup-
ported? Thus, where the title to property is disputed, an
agreement, by persons interested, to indemnify the sheriff for
serving or neglecting to serve an execution upon the prop-
erty, if made in good faith, and with intent to bring the title
more conveniently to a legal decision, is clearly valid® So,

 

1 Capp v. Topham, 6 East, 392; Burdon v, Webb, 2 Esp. 527. [Ante,
§ 111. Where the parties to a wager upon the result of an election depos-
ited the amount bet with a stakeholder, and after the election was deter-
mined against the plaintiff, he demanded ‘of the stakeholder repayment of
his money, and forbade the winner to take it, but the stakeholder paid to the
winner the identical money which the plaintiff had deposited with him, the
plaintiff was allowed to recover the same of the winner, in an action of
money had and received. McKee v. Manice, 11 Cush. 357. No one know-
ingly participating in a transaction intended to accomplish a purpose forbid-
den by Jaw, can bring an action for any cause directly connected with that
illegality. Foster v. Thurston, Ib. 322; White v. Bass, 3 Ib. 448; Duffy v.
Gorman, 10 Ib. 45; Mills v. Western Bank, Ib. 22.] ;

2 Betts v. Gibbins, 4 Nev. & M. 77, per Ld. Denman, C. J.; 2 Ad. & El.
57, S. C.; Merryweather v. Nixan, 8 T. R. 186. [The rule of law, that
wrongdoers cannot have redress or contribution against each other, is con-
fined to those cases where the person claiming redress or contribution knew,
or must be presumed to have known, that the act for which he has been
mulcted in damages was unlawful. Jacobs v. Pollard, 10 Cush. 287. Thus,
where A in good faith took up B’s cattle damage-feasant, and C, a field-
driver, at A’s request, sold them at auction and received the money ; but the
proceedings being irregular, A and C were, in fact, joint trespassers; it was
held, that A may maintain an action of money had and received against C,
for the proceeds of the sale of the cattle. Ib.] ©

3 Wright v. Ld. Verney, 2 Doug. 240; Watson on Sheriffs, p. 380.
PART IV.] ASSUMPSIT. 115

where a sheriff, having arrested the debtor on mesne process,
discharged him on payment of the sum sworn to, but was
afterwards obliged to pay the original plaintiff his interest,
he was permitted to recover the latter sum from the debtor,
under a count for money paid! So, where the sheriff has
been obliged to pay the debt, by reason of the negligent
escape of the debtor, namely, an escape by the. pure act of
the prisoner, without the knowledge and against the consent
of the officer, it seems he may recover the amount as money
-paid for the debtor? But if the escape were voluntary on
the part of the officer, the money paid could not be recovered
of the debtor.?

§ 116. Where the money, which is sought to be recovered
under the count for money paid, has been paid under a judg-
ment against the plaintiff, the record of the judgment, as we
have heretofore shown,' is always admissible to prove the
fact of the judgment, and the amount so paid. But it is not
admissible in proof of the facts on which the judgment was
founded, unless the debtor, or person for whose default the
action was brought, had due notice of its pendency, and
might have defended it; in which case the record is conclu-
sive against the delinquent party, as to all the material facts
recited in it.

 

1 Gordon v. Ld. Massarene, Peake’s Cas. 143.

2 Eyles v. Faikney, Peake’s Cas. 143, n. (a.) Semble. Better reported
in 8 East} 172, n.; 4 Mass. 373, per Parsons, C. J.; Appleby v. Clark, 10
Mass. 59. '

8 Pitcher v. Bailey, 8 East, 171; Eyles v. Faikney, Id. 172, n.; Peake’s
Cas. 143, n., S. C.; Martyn v. Blithman, Yelv. 197; Chitty on Contracts,
pp- 526, 527; Ayer c. Hutchins, 4 Mass: 370; Denny v. Lincoln, 5 Mass.
385; Churchill v. Perkins, Id. 541; Hodgson v. Wilkins, 7 Greenl. 113.

4 Ante, Vol. 1, § 527.

5 Ante, Vol. 1, §§ 527, 588, 539; Smith v. Compton, 3 B. & Ad. 407.
“Tt is always advisable,” observes Me. Smith, “for the surety to let his
principal know when he is threatened, and request directions from him ; for
‘the rule laid down by the King’s Bench in Smith v. Compton, is, that the
effect of want of notice (to the principal) is to let in the party who is called
upon for an indemnity, to show that the plaintiff has no claim in respect of
the alleged loss, or not to the amount alleged ; that he made an improvident
116 LAW OF EVIDENCE. [PART IV.

§ 117. The count for money had and received, which in its
spirit and objects has been likened to a bill in equity, may,
in general, be proved by any legal evidence, showing that
the defendant has received or obtained possession of the
money of the plaintiff, which, in equity and good conscience,
he ought to pay over to the plaintiff. The subject of the
action must either originally have been money; or, that
which the parties have agreed to treat as money ; or, if orig-
inally ‘goods, sufficient time must have elapsed, with the
concurrence of circumstances, to justify the inference, that
they have been converted into money. It is a liberal action,
in which the plaintiff waives all tort, trespass, and damages,
and claims only the money which the defendant has actually
received.! But if the defendant has any legal or equitable
lien on the: money, or any right of cross action upon the
same transaction, the plaintiff can recover only the balance,
after satisfying such counter demand.”

 

bargain, and that the defendant might have obtained better terms, if an
opportunity had been given him. ... The effect of notice to an indemni-
fying party is stated by Buller, J., in Duffield v. Scott, 3 T. R. 374. The
purpose of giving notice is not in order to give a ground for action; but ifa
demand be made which the party indemnifying is bound to pay, and notice
be given to him, and he refuse to defend the action, in consquence of which
the person indemnified is obliged to pay the demand, that is equivalent to a
judgment, and estops the other party from saying, that the defendant in the
first action was not bound to pay the money.” See 1 Smith’s Leading
Cases, 70, 71, note. [No action lies to recover back money paid under an
erroneous judgment which is still unreversed. Wilbur v. Sproat, 2 Gray,
431.]

1 Anon. Lofft, R. 320; Feltham v. Terry, cit. Cowp. 419 ; Moses v. Mac-
ferlan, 2 Burr. 1005 ; Eastwick v. Hugg, 1 Dall. 222; Lee v. Shore, 1 B.&
C. 94; Cowp. 749, per Ld. Mansfield; 4M. & S. 748, per Ld. Ellenbor-
ough. But see Miller v. Atlee, 13 Jur. 431; [Bartlett v, Bramhall, 3 Gray,
260. The rule that the plaintiff, when he waives the tort and brings assump-
sit, is limited in his damages to the money actually received by the defendant
and interest thereon, is the same in a case where the plaintiff has no remedy
in trover or trespass. Shaw v. Beckett, 7 Cush. 442; Dow v. Sudbury, 5
Met. 73.]

2 Simpson v. Swan, 8 Campb. 291; Eddy v. Smith, 13 Wend. 488; Clift
v. Stockdon, 4 Litt. 217; [Bartlett v. Bramhall, 8 Gray, 260.]
PART Iv.] ¢ ASSUMPSIT. Jf

§118. In regard to things treated as money, it has been
held, that this count may be supported by evidence of the
defendant’s receipt of bank notes;! or, promissory notes ;*
or, credit in account, in the books of a third person ;° or, a
mortgage, assigned to the defendant as collateral security,
and afterwards foreclosed and bought in by him;* or, a
note payable in specific articles ;5 or, any chattel.6 But not
where the thing received was stocks,’ goods,® or any other
article; unless, in the understanding of the parties, it was
considered and to be treated as money; or, unless it was in-
tended to be sold by the receiver, and sufficient time has
elapsed for that purpose.® If the defendant was.the agent
of the plaintiff, and the evidence of his receipt of the money
is in his own account, rendered to his principal, this will
generally be conclusive against him, unless he can clearly
show, that it was unintentionally erroneous. And if the

 

1 Pickard v. Bankes, 13 East, 20; Lowndes v. Anderson, 13 East, 130;
Mason v. Waite, 17 Mass. 560; Anslie v. Wilson, 7 Cow. 662.

2 Floyd v. Day, 3 Mass. 405; Hinkley v. Fowle, 4 Shepl. 285; Tuttle v.
Mayo, 7 Johns. 132; Fairbanks v. Blackinton, 9 Pick. 93. If the plaintiff,
under this count, files a bill of particulars, stating his claim to be for the
amount of a promissory note, which he describes, he will not be permitted to
give evidence of the preéxisting debt for which the note was given. Bank
U. States v. Lyman, 5 Washb. 666 ; [Tebbetts v. Pickering, 5 Cush. 81. A
cash draft accepted may be given in evidence under a count for money had
and received in an action by a payee against the acceptor. Wells v. Brig-
ham, 6 Cush. 6 ; Osgood v. Parsons, 4 Gray, 455.] °

3 Andrew v. Robinson, 3 Campb. 199.

4 Gilchrist v. Cunningham, 8 Wend. 641.

5 Crandall v. Bradley, 7 Wend. 311; [Taplin v. Packard, 8 Barb. 200.]

6 Arms v. Ashley, 4 Pick. 71; Mason v. Waite, 17 Mass. 560.

7 Nightingal v. Devisme, 2 Burr. 2589; Jones v. Brinley, 1 East, 1; Mor-
rison v. Berkey, 7 S. & R. 246.

* Leery v. Goodson, 8 T. R. 687; Whitehall v. Bennett, 3 B. & P. 559.

9 McLachan v. Evans, 1 Y. & Jer. 380; Longchamp v. Kenney, 1 Doug.
117. ‘

10 Shaw v. Picton, 4 B. & C. 717, 729; ‘Shaw v. Dartnall, 6 B. & C. 56.
Where a factor sold goods on credit, to a person notoriously insolvent, tak-
ing the note of the purchaser payable to himself, and passing the amount to
his principal’s credit in account, as money, which he afterwards paid over ;
it was held, that he was not entitled, upon the failure of the purchaser, to
118 LAW OF EVIDENCE. [PART IV.

agent or consignee of property to be sold, refuses to render
any account, it will, after a reasonable time, be presumed, if
the contrary do not appear, that he has sold the goods, and
holds the proceeds in his hands.

§ 119. Where the money was delivered to the defendant
for a particular purpose, to which he refused to apply it, he
cannot apply it to any other, but it may be recovered back
by the depositor, under the count for money had and re-
ceived” If it was placed in his hands to be paid over to a
third person, which he agreed to do, such person, assenting
thereto, may sue for it as money had and received to his
own use.2 But ifthe defendant did not consent so to appro-
priate it, it is otherwise, there being no privity between them ;
and the action will lie only by him, who placed the money
in his hands.* If the money. was delivered with directions
to appropriate it in a particular manner for the use of a third
person, it has been held, that the party depositing the money
might countermand the order, and recover back in this action,
at any time before the receiver had paid it over, or entered
into any arrangement with the other party, by which he
would be injured, if the original order was not carried into
effect.5 But if the money has been deposited in the hands
of a trustee, for a specific purpose, such as for the conduct-

 

recover this money back from the principal. Simpson v. Swan, 83 Campb.
291. But where, after the goods were consigned, but before the sale, the
principal drew bills on the factor for the value, which he accepted ; after
which he sold the goods to a person in good credit, taking notes payable to
himself, and rendered to the principal an account of the sale as for cash, not
naming the purchaser, and the latter afterwards, and before the maturity of
the notes, became insolvent; the principal was held liable to refund the
money to the factor, in this action. Greely v. Bartlett, 1 Greenl. 172.

1 2 Stark. Ev. 63; Selden v. Beale, 83 Greenl. 178.

2 De Bernales v. Fuller, 14 East, 590, n.

3 Com. Dig. 205, 206, Assumpsit, E.

4 Williams v. Everett, 14 East, 582; Hall v. Marston, 17 Mass. 575, 579 ;
Grant v. Austin, 3 Price, 58.

5 Gibson v. Minet, Ry.& M.68; 1 C. & P. 247,8.C.; 9 Moore, $1, 8.C.;
2 Bing. 7, 8. C.; Lyte v. Peny, Dy, 49,a; Taylor v. Lendey, Bast, 49,
PART IV.] ASSUMPSIT. 119

ing of a suit by him, as the party’s attorney, or by two liti-
gating parties, in trust for the prevailing party, it cannot be
recovered back in this action till the trust is satisfied So,
if money has been paid upon a condition which has not been
complied with, it cannot be recovered as money had and re-
ceived to the payer’s use.”

§ 120. The count for money had and received may also be
supported by evidence, that the defendant obtained the plain-
tiff’s money by fraud, or false color or pretence.? Thus,
where one having a wife living, fraudulently married another,
and received the rents of her estate, he was held liable to the
latter, in this form of action. And where the defendant has
tortiously taken the plaintiff’s property, and sold it, or being
lawfully possessed of it, has wrongfully sold it, the owner
may, ordinarily, waive the tort, and recover the proceeds of
the sale under this count. So, if the money of the plaintiff
has in any other manner come to the defendant’s hands, for
which he would be chargeable in tort, the plaintiff may waive
the tort, and bring assumpsit upon the common counts. But
this rule must be taken with this qualification : that the de-
fendant is not thereby to be deprived of any benefit, which
he could have derived under the appropriate form of action in
tort.6 Thus, this count cannot be supported, for money paid
for the release of cattle distrained, damage-feasant, though
the distress was wrongful, where the right of common is the

 

1 Case v. Roberts, Holt’s Cas. 500; Ker v. Osborn, 9 East, 378. See
2 Story on Eq. Juris. § 793 a, 793 b.

2 Hardingham v. Allen, 5 M. G. & S. 793; 17 Law J. 198, C. P.

3 Steph. N. P. 335; Bliss v. Thompson, 4 Mass. 488 ; Supra, § 108; Lyon
v. Annable, 4 Conn. 350.

4 Hasser v. Wallace, 1 Salk. 28.

5 Supra,§ 117. But the goods must have been sold, or this count cannot
be maintained. Jones v. Hoar, 5 Pick. 285. And there must be:a tort, to
be waived, for which trespass or case would lie. Bigelow v. Jones, 10 Pick.
161; [Bartlett v. Bramhall, 3 Gray, 260.]

6 Lindon v. Hooper, Cowp. 414, 419; Anscomb v. Shore, 1 Campb. 285;
Young v. Marshall, 8 Bing. 43.
120 LAW OF EVIDENCE. [PART Iv.

subject of dispute,' nor even where, though the distress was
lawful, the sum demanded in damages was excessive, if there .
had been no tender of amends,? nor for money received for
rent, where the title to the premises is in question between
the parties ;3 nor in any other case, where the title to real
estate is the subject of controversy; that being a question,
which, ordinarily, cannot be tried in this form of action!

§ 121. Under this count, the plaintiff may also recover back
money proved to have been obtained from him by duress,

 

1 Lindon v. Hooper, Cowp. 414.

2 Gulliver v. Cosens, 9 Jur. 666. The reason for this was stated by Colt-
man, J., in the following terms: ‘“ The plaintiff, if he had desired to recover
his cattle, should have replevied. ‘It is true, that, if he had done. so, there
would have been an avowry by the defendant, which the plaintiff could not

_have successfully resisted ; but he might have allowed judgment in the re-
plevin suit to have passed against him for default of prosecution, upon which
an award of a return to the other party would have been made, after which the
parties would have been remitted to their formersituation. It would then have
been for the plaintiff to have tendered sufficient amends ; and, if the defend-
ant afterwards refused to deliver up the cattle, an action of detinue to recover
them back would have been maintainable. That is the mode pointed out by
the law, but, instead of following that, the plaintiff pays the sum demanded,
under protest, and brings this form of action of money had and received, in
order to recover it back. The objection to that is, that the law has cast on
him the duty of tendering the proper amount of compensation, whereas the
effect of allowing the present action to lie would be to cast the burden of
ascertaining the right amount on the other party. This case is different
from that of a carrier, where the action of money had and received has been
held to lie, for there the carrier, by claiming more than he is entitled to, is
the wrongdoer. Neither does this properly come within the case of money
paid ander duress of goods, for duress implies an illegal detention ; but
here the defendant comes into and keeps possession of ‘the cattle in a way
which the law does not consider wrongful.” See 1 Man. Gr. & Se. 788, S. C.,
but not so fully reported.

3 Cunningham v. Lawrents, 1 Bac. Abr. 260, n.; Newsome v. Graham,
10 B. & C. 334.

4 1 Chitty on Pl: 95, 96, 121; Binney v. Chapman, 5 Pick. 180; Miller
v. Miller, 7 Pick. 133; Codman »v. Jenkins, 14 Mass. 96; Baker »v. Howell,
68.& BR. 481. But the right to an office may be tried in this form of ac-
tion, if the plaintiff has once been in possession. Allen v. McKeen, 1 Sumn.
317; Green v. Hewitt, Peake’s Cas. 182; Rex v. Bp. of Chester, 1 T. R.
396, 403.
PART IV.] ASSUMPSIT. 121

extortion, imposition, or taking any undue advantage of his
situation, or otherwise involuntarily and wrongfully paid;
as by demand of illegal fees or claims,! tolls? duties, taxes,
usury, and the like, where goods or the person were detained
until the money has been paid.? So, where goods were il-
legally detained as forfeited*; or, where money was unlaw-
fully demanded and paid to a creditor, to induce him to sign
a bankrupt’s certificate ;5 or, where a pawnbroker refused to
deliver up the pledge, until a greater sum than was due was
paid to him.6 So, if the money had been paid under an
usurious, or other ilegal contract, where the plaintiff is. not
in pari delicto with the defendant ;7 or, for a consideration

 

1 Morgan v. Palmer, 2 B.& C. 729; Dew v. Parsons, 1 Chitty, R. 295,
2 B. & Ad. 562, S.C.; Walker v. Ham, 2 N. Hamp. 238; Clinton v. Strong,
9 Johns. 370; Wakefield v. Newbon, 6 Ad. & El. 276, N. S. Even though
the money were received and illegally claimed by a corporation. Hall v.
Swansea, 5 Ad. & El. 526, N. S. See further, as to the principal point,
Close v. Phillips, 7 M. & G. 586.

2 Fearnley v. Morley, 5 B. & C. 25; Chase v. Dwinel, 7 Greenl. 135.

3 Shaw v. Woodcock, 9 D. & R. 889; 7B. & C. 73, S. C.; Amesbury v.
Amesbury, 17 Mass. 461; Perry v. Dover, 12 Pick. 206; Atwater v. Wood-
bridge, 6 Conn. 223; Elliott ». Swartwout, 10 Pet. 137; Parker v. Great
Western Railw. Co. 8 Jur. 194; 7 Scott, N. R. 835; 7 M. & G. 253, 8. C.;
Valpy v. Manley, 9 Jur. 452; 1 M. G. & Se. 594. [Payment to a collector
of taxes, who has a tax-bill and warrant for levying the same, in the form
prescribed by law, is not a voluntary payment, but is compulsory, and if the
whole tax be illegally assessed, assumpsit will lie to recover it back. Joy-
ner v. Egremont, 3 Cush. 567; aliter as it seems, where the tax is not en-
tirely void, the remedy then being by appeal. Wright v. Boston, 9 Ib. 233.
Such a payment, if made without protest, is a voluntary payment, and the
sum paid cannot be recovered back. New York & H. R. R. Co. v. Marsh,
2 Kernan, 308. See also Allentown v. Saeger, 20 Penn. State R. (8 Har-
ris,) 421. Illegal taxes, assessed under color of law and voluntarily paid,
cannot be recovered back; Christy v. St. Louis, 20 Mis. 143. Payment to
a carrier who refuses to deliver goods except on the payment of a much
larger sum than is his due, is a payment under duress, and the sum so paid
may be recovered back. Harmony v. Binham, 2 Kernan, 99.]

4 Irving v. Wilson, 4 T. R. 485.

5 Smith v. Bromley, 2 Doug. 696, n.; Cockshott v. Bennett, 2 T. R. 763 ;
Stock v. Mawson, 1 B. & P. 286. See Wilson v. Ray, 10 Ad. & El. 82.

5 Astley v. Reynolds, 2 Str. 915; 1 Selw. N. P. 83, note.

71 Steph. N. P. 335-341; Supra,§111; 1 Selw. N. P. 84-94; Wor-

VOL. II. 11
122 LAW OF EVIDENCE. [PART Iv.

which has failed ;} or, where the goods of the plaintiff have
been seized and sold by the defendant, under an execution
to which he was a stranger;? or, under a conviction, which
has since been quashed, or, a judgment, which has since been
reversed, the defendant having received the money;? or,
under terror of legal process, which, though regularly issued,
did not authorize the collection of the sum demanded and
paid.* So, where the person is arrested for improper purposes
without just cause; or, for a just cause, but without lawful
authority; or, for a just cause and by lawful authority, but
for an improper purpose; and pays money to obtain his dis-
charge, it may be recovered under this count.

§ 122. This count, ordinarily, may also be proved by evi-
dence, that the plaintiff paid the money to the defendant
upon a security, afterwards discovered to be a forgery; pro-
vided the plaintiff was not bound to know the handwriting,
or, the defendant did not receive the money in good faith.
Thus, where the defendant, becoming possessed of a lost bill
of exchange, forged the payee’s indorsement, and thereupon
obtained its acceptance and payment from the drawees, he
was held liable to refund the money in this action, though
the bill was drawn by a commercial house in one country,
upon a branch of the same house in another.6 An acceptor,
however, is bound to know the handwriting of the drawer of
the bill; and a banker is in like manner bound to know the

-.
+

cester v. Eaton, 11 Mass. 376; Boardman v. Roe, 13 Mass. 105; Wheaton
v. Hibbard, 20 Johns. 290; Merwin v. Huntington, 2 Conn. 209. And see
Perkins v. Savage, 15 Wend. 412; White v. Franklin Bank, 22 Pick. 181,
186-189.

' 1 Steph. N. P. 330-333, 345.

2 Oughton v. Seppings, 1 B. & Ad. 241.

3 Feltham v. Terry, cit. Cowp. 419; 1 T. & R. 387; Bull. N. P.131;
1 Steph. N. P. 357-359. See the cases cited in 1 U. S. Digest, pp. 293, 294.
[But not if the judgment is still unreversed. Wilbur v. Sproat, 2 Gray, 431.]

4 Snowdon v. Davis, 1 Taunt. 359. But see Marriott v. Hampton, 7 T.
R. 269; 2 Esp. 546.

5 Bull. N. P. 172, 173; 5 Com. Dig. Pleader, 2 W. 19; Kickestion vw,
Duncan, 3 N. Hamp. 508; Watkins v. Baird, 6 Mass. 506.

6 Cheap v. Harley, cit. 8 T. R. 127.
PART IV.] ASSUMPSIT. 123

handwriting of his own customers; so that, in general, where
they pay money upon the forgery of such signatures, to an
innocent holder of the paper, the loss is their own! Yet
where a banker paid a bill to a remote indorsee, for the honor
of his customer, who appeared as a prior indorser, but whose
signature was forged, and, on discovery of the forgery, he
gave notice thereof, and returned the bill to the holder, in
season for him to obtain his remedy against the prior actual
indorsers, it was held, that he might, for this reason, recover
back the money of the holder? But where one wrote his
check so carelessly as to be easily altered to a larger sum, so
that the banker, when he paid it, could not discover the
alteration, it was held to be the loss of the drawer? So, if
lost or stolen money, or securities, have come to the defend-
ant’s hands, mald fide, the owner may recover the value in
this form of action.‘

§ 123. In this manner, also, money is recovered back,
which has been paid under a mistake of facts. But here, the
plaintiff must show, that the mistake was not chargeable to
himself alone ;* unless it was made through forgetfulness, in
the hurry of business, in which case it may be recovered.
But if it was paid into Court, under a rule for that purpose,
it is conclusive on the party paying, even though it should
appear, that he paid it erroneously.’ Nor can money paid

 

1 Price v. Neale, 3 Burr. 1354; Smith v. Mercer, 6 Taunt. 76.

2 Wilkinson v. Johnson, 3 B. & C. 428; [Jones v. Ryder, 5 Taunt. 488;
Cabot Bank v. Morton, 4 Gray, 158.]

3 Young ». Grote, 4 Bing. 253. .

41 Steph. N. P. 353-355. But a party receiving a stolen bank-note
bond fide and for value, may retain it against the former owner, from whom
it has been stolen. Miller v. Race, 1 Burr. 452. So in the case of any
other negotiable- instrument actually negotiated. 1 Smith’s Leading Cases,

p. 258-263 (Am. edit.) ; 43 Law Lib. 362-368.
' 5 Milnes v. Duncan, 6 B. & C. 671, per Bayley, J.; Hamlet v. Richard-
son, 9 Bing. 647; Story on Contr. § 407-411. If one by mistake pay the
debt of another, he may recover it back of him who received it, unless the
latter was injured by the mistake. Tybout v. Thompson, 2 Browne, 27.

6 Lucas v. Worswick, 1 M. & Rob. 293.

7 2T. R. 648, per Buller, J.
.

124 LAW OF EVIDENCE. [PART IV.

under a mistake of facts be reclaimed, where the plaintiff has
derived a substantial benefit from the payment;} nor, where
the defendant received it in good faith, in satisfaction of an
equitable claim ;? nor where it was due in honor and con-
science.2 The laws of a foreign country are regarded, in this
connection, as matters of fact; and therefore money paid
under a mistake of the law of another State, may be recov-
ered back. Juris ignorantia est, jus nostrum ignoramus.‘
But it is well settled, that money paid under a mistake or
ignorance of the law of our own country, but with a knowl-
edge of the facts or the means of such knowledge, cannot be
recovered back.

 

1 Norton v.. Marden, 3 Shepl. 45.

2 Moore v. Eddowes, 2 Ad. & El. 133.

3 Farmer v. Arundel, 2 W. Bl. 824, per De Grey, C. J.

4 Haven v. Foster, 9 Pick. 112, 118; Story on Contr. § 408.

5 Chitty on Contr. 490, 491; 1 Story on Contr. § 407; Elliott v. Swart-
wout, 10 Pet. 147. [Ignorance of the law of a foreign government is igno-
rance of fact, and in this respect the statute laws of other States of the
Union are foreign laws. Bank of Chillicothe v. Dodge, 8 Barb, 233. If
the consideration of a note by an agent is money advanced to him for the
use of his principal, under a mutual mistake of the legal capacity of the
principal to authorize the giving of such note by his agent, and the lender,
finding that neither the principal nor the agent is legally bound upon the
note, demands the money of the agent before it is paid over to his principal,
he may recover it of the agent in an action of money had and received.
Jefts v. York, 10 Cush. 393. Where one with a full knowledge of the facts
voluntarily pays a demand unjustly made on him and attempted to be en-
forced by legal proceedings, he cannot recover back the money, as paid by
compulsion, unless there be fraud in the party enforcing the claim, and a
knowledge that the claim is unjugt; and the case is not altered by the fact
that the party, so paying, protests that he is not answerable, and gives notice
that he shall bring an action to recover the money back. Benson v. Mon-
roe, 7 Cush. 125. In this case the money had been paid by the plaintiff
under the requirements of a State statute, which the State Courts had de-
cided to be constitutional, and this decision, though it was afterwards reversed
by the Federal Courts, was, at the time of the payment, in full force. See
also Forbes v. Appleton, 5 Cush. 115; Gooding v. Morgan, 37 Maine, 419;
Boutelle v. Melendy, 19 N. H. 196. Where in a sale of an article subject
to duty, the duty to be assessed was reckoned at five cents a pound more
than the true duty, and this excess was deducted from the price to be paid,
the vendor was permitted to maintain an action therefor. Renard v. Fiedler,
PART IV.] ASSUMPSIT. 125

§ 124. This count may also be supported by proof, that
the defendant has received money of the plaintiff upon a con-
sideration which has failed ;1 as, for goods sold to the plain-
tiff, but never delivered;? or, for an annuity granted, but

afterwards set aside ;? or, as a deposit on the purchase of an |

estate by the plaintiff, to which the defendant cannot make
the title agreed for ;* or, where payment has been innocently
made in counterfeit bank-notes, or coins, if the plaintiff has
offered to return them, within a reasonable time. So, where
the money was paid upon an agreement which has been re-
scinded,® whether by mutual consent, or by reason of fault
in the defendant; the plaintiff showing that the defendant
has been restored to his former rights. of property, without
unreasonable delay.’ But if the agreement has been par-
tially executed, and the parties cannot be reinstated in statu
quo, the remedy is to be had only under a special count upon
the contract.2 Thus, where A was let into possession of

 

3 Duer, (N. Y.) 318. Where one of several debtors pays a debt after it is
barred by the statute, he cannot maintain a suit against the others. Wheat-
field v. Brush Valley, 25 Penn. State R. 112. Money voluntarily paid with
full knowledge of the facts cannot be recovered back; but having the means
of ascertaining the real facts, is not the same as actual knowledge of them.
Rutherford v. Melvor, 21 Ala. 570.]

1 Chitty on Contr. 487-490; 1 Steph. N. P. 330-332; Spring v. Coffin,
10 Mass. 34. But in this form of action, no damages are recovered beyond

the money actually paid, and the interest. Neel v. Deans, 1 Nott & M’C. °

210.

2 Anon. 1 Stra. 407.

3 Shove v. Webb, 1 T. R. 732.

4 Alpass v. Watkins, 8 T. R. 516; Elligtt v. Edwards, 3 B. & P. 181;
Eames v. Savage, 14 Mass. 425. The plaintiff in such case must show, that
he has tendered the purchase-money and demanded a title. Hudson v.
Swift, 20 Johns. 24. See also Gillett v. Maynard, 5 Johns. 85.

5 Young v. Adams, 6 Mass. 182; Markle v. Hatfield, 2 Johns. 455;
Keene v. Thompson, 4 Gill & Johns. 463; Salem Bank v. Gloucester Bank,
17 Mass. 1; Id. 33; Raymond v. Baar, 13 S. & R. 318.

6 Gillett v. Maynard, 5 Johns. 85; Bradford v. Manley, 13 Mass. 139;
Connor v. Henderson, 15 Mass. 319.

7 Percival v. Blake, 2 C. & P. 514; Cash v. Giles, 3 C. & P. 407; Reed
v. McGrew, 5 Ham. (Ohio) R. 386; Warner v. Wheeler, 1 Chipm. 159.

8 Hunt v. Silk, 5 East, 449; Reed v. Blandford, 2 Y. & J. 278.

11 *
126 LAW OF EVIDENCE. [PART Iv.

a house belonging to B, under a parol agreement with the
latter, that if A would make certain repairs, he should re-
ceive a lease for twelve years; and he made the repairs, but
B refused to grant the lease; it was held, that A could not
_ recover in assumpsit for the value expended in repairs, be-
cause it did not appear that the agreement was mutually
rescinded.

§ 125. In regard to money received by an agent, the general
rule is, that the action to recall it must be brought against
the principal only, since, in legal contemplation, the receipt
was by the principal, with whom the agent was identified.
But the count for money had and received, against. the agent
alone, may be supported by proof that the principal was a
foreigner, resident abroad; or, that the agent acted in his own
name, without disclosing his principal; or, that the money
was obtained by the agent through his own bad faith, or
wrong, whether alone, or jointly with the principal; or, that,
at the time of paying the money into his hands, or, at all
events, before he had paid it over, or had otherwise materi-
ally changed his situation or relations to the principal, in
consequence of the receipt of the money, as, by giving a new
credit to him, or the like, he had notice not to pay it over to
the principal.2? But though he has not paid over the money,

1 Hopkins v. Richardson, 14 Law J. N. S. 80, Q. B. [The plaintiff and
the defendant were members of a voluntary unincorporated association for
raising money for a particular purpose. The plaintiff with others contrib-
uted moneys for this purpose, which were handed to the chairman of the
association in the first instance,and by him to the defendant who placed
them with its general funds. - THe final application of the contributions was
to be made by a director chosen by the association; but a temporary invest-
ment of the funds was made by the defendant in pursuance of a majority
vote of the committee. The object of the association failed, no money was
applied for that purpose, and there were incidental charges and expenses
and some losses on the investments. The plaintiff brought an action of
money had and received to recover of the defendant the amount of his con-
tribution, and it was held that the action could not be maintained. Murray
v. McHugh, 9 Cush. 158.]

2 Story on Agency, §§ 266, 267, 268, 300, 301; Paley on Agency, by
Lloyd, p. 388-394; 3 Chitty on Com. & Manuf. 213.
PART IV.] ASSUMPSIT. 127

yet, if he is a mere collector or receiver, the right of the prin-
cipal cannot be tried in this form of action#

§ 126. In support of the count upon an account stated, the
plaintiff must show that there was a demand on his side,
which was acceded to by the defendant. There must be a
‘fixed and certain sum, admitted to be due;? but the sum
need not be precisely proved as laid in the declaration2 The
admission must have reference to past transactions, that is, to
a subsisting debt, or, to a moral obligation, founded on an
extinguished legal obligation, to pay a certain sum ;‘ but if
the amount is not expressed, but only alluded to by the de-
fendant, it may be shown, by other evidence, that the sum
referred to was of a certain and agreed amount. The ad-
mission may be shown to have been made to the plaintiff’s
wife, or other agent,® but an admission in conversation with
a third person, not the plaintiff’s agent, is not sufficient.’
The admission itself must be voluntary, and not made upon
compulsion ;* and it must be absolute, and not qualified?

 

1Ibid.; Sadler v. Evans, 4 Burr. 1984; Allen v. McKeen, 1 Sumn. 277,
278, 317.

2 Porter v. Cooper, 4 Tyrwh. 456, 464, 465; 1 C. M. & R. 387,8.C.;
Knowles v. Michel, 13 East, 249; Arthur v. Dartch, 9 Jur. 118; Perry v.
Slade, 10 Jur. 31; Moseley v. Reade, 1d.18. AnIO U is evidence of an
account stated between the holder and the party signing it. Fessenmayer v.
Adcock, 16 M. & W. 449. Ifthe defendant has admitted a general balance,
the plaintiff may recover, without going into the particulars of the account.
Gregory v. Bailey, 4 Harringt. 256.

3 Bull. N. P. 129. Proof of one item only, will support the count. High-
more v. Primrose, 5 M. & S. 65, 67; Knowles v. Michel, 13 East, 249;
Pinchon v. Chilcott, 3 C. & P. 286. :

4 Clarke y. Webb, 4 Tyrwh. 673; 1C. M. & R. 29, 8. C.; Tucker v. Bar-
row, 7 B. & C. 623; 3 C. & P. 85, S. C.; Whitehead v. Howard, 2 B. & B.
372; Seagoe v. Dean, 3 C. & P.170. An I O U is admissible. Payne v.
Jenkins, 4 C. & P. 324.

5 Dixon v. Deverage, 2 C. & P. 109.

6 Styart v. Rowland, 1 Show. 215; Bull. N. P.129; Baynham »v. Holt,
8 Jur. 963.

7 Breckon v. Smith, 1 Ad. & El. 488.

8 Tucker v. Barrow, 7 B. & C. 623; 3 C. & P. 85, 8. C.

9 Evans v. Verity, Ry. & M. 239.
128 LAW OF EVIDENCE. [PART IV.

But it need not be express and in terms; for if the account
be sent to the debtor, in a letter, which is received but not
replied to in a reasonable time, the acquiescence of the party
is taken as an admission that the account is truly stated.!
So, if one item only is objected to, it is an admission of the
rest2 So, ifa third person is employed by both parties to
examine the accounts in their presence, and he strikes a bal-
ance against one, which, though done without authority, is
not objected to, it is sufficient proof of an account stated?
So, if accounts are submitted to arbitration, by parol, the
award is sufficient proof of this count.*

§ 127. The original form, or evidence of the debt, is of no
importance, under the count upon an account stated ; for the
stating of the account alters the nature of the debt, and is in
the nature of a new promise or undertaking. Therefore, if
the original contract were void, by the Statute of Frauds, or
the Stamp Act, or,’ if the items of the account were rents
secured by specialty,’ yet if, after the agreement is executed,

 

1 Ante, Vol. 1, § 197.

2 Chisman v. Count, 2 M. & Gr. 307.

31 Steph. N. P. 361.

4 Keen v. Batshore, 1 Esp. 194. This case of Keen v. Batshore is said by
Pollock, C. B., to have been decided chiefly on the ground that, as there
were no arbitration bonds, and the parties must be presumed to have in-
tended to do something, the arbitrator might well be regarded as their agent,
examining and stating the accounts in their presence. Beyond this, its au-
thority was denied in the recent case of Bates v. Townley, 12 Jur. 606, in
which it was held, that an award, made under a regular submission in writ-
ing, was no evidence of an account stated by either of the parties.

5 Anon. 1 Ventr. 268; Foster y. Allanson, 2 T. R. 479, 482, per Ashhurst,
J.; Ibid. 483, per Buller, J.; Holmes v. D’Camp, 1 Johns. 36, per Spencer,
J. Therefore an account stated with a new firm, may sometimes include
debts due to a former firm, or to one of the partners. David v. Ellice, 5 B.
& C.196. And see Gough v. Davies, 4 Price, 200; Moor v. Hill, Peake’s
Add. Cas. 10.

6 Seagoe v. Dean, 3 C. & P.170; 4 Bing. 459, 8. C.; Pinchon & Ghilcott,
3 C. & P. 236; Teal v. Auty, 2 B. & B. 99; Knowles v. Michel, 13 East, 249 ;
Cocking v. Ward, 1M. G. & Se. 858.

7 Davison v. Hanslop, T. Raym. 211; Moravia v. Levy, 2 T. R. 483, n.;
Danforth v. Schoharie, 12 Johns. 227; Foster v. Allanson, 2 T. R.479; Ar-
thur v. Dartch, 9 Jur. 118. But this doctrine was questioned in Gilson v.
PART IV.] ASSUMPSIT. 129

there be. an actual accounting and a promise express or im-
plied to pay, it is sufficient. It is not necessary to prove the
items of the account; for the action is founded, not upon
these, but upon the defendant’s consent to the balance ascer-
tained! And it is sufficient if the account be stated of what
is due to the plaintiff alone, without deduction for any coun-
ter claim of the defendant. But a banker’s pass-book deliv-’
ered to his customer, in which there are entries on one side
only, is not evidence of an account stated between them,
though the customer keeps the book in his custody, without
making any objection to the entries contained in it.3

§ 128. It is not material when the admission was made,
whether before or after action brought, if it be proved, that
a debt existed before suit, to which the conversation related.4
But whensoever such admission was made, it is not now
held to be conclusive; but any errors may be shown and
corrected under the general issue If the defendants were
formerly partners, and the admission was by one of them
alone, in regard to things which were done before the disso-
lution of the firm, it seems to be considered sufficient. And
where A admitted to an agent of B, that a balance was due
from himself in respect to a bill of exchange, of which B
was then, but unknown to A, the holder; and afterwards, A,
having been informed that B held the bill, told the agent
that he could not pay it; these two admissions, taken
together, were held evidence of an account stated. But

 

Stewart, 7 Watts, 100, and its application restricted to cases, where the
account included other matters also, not arising by the specialty.

1 Bartlett v. Emery, 1 T. R. 42, n.; Bull, N. P. 129.

2 Styart v. Rowland, 1 Show. 215.

3 Ex parte Randleson, 3 Deac. & Chitty, 534. And see Tarbuck v. Bip-
sham, 2 M. & W. 2.

4 Allen v. Cook, 2 Dowl. P. C. 546.

5 Thomas v. Hawkes, 8 M. & W. 140; Perkins ». Hart, 11 Wheat. 237,
256; Holmes v. D’Camp, 1 Johns. 36. Formerly it was otherwise. True-
man v. Hurst, 1 T. R. 40. See further, Harden v. Gordon, 2 Mason, 541,
561.

6 Ante, Vol. 1, § 112, and note.

7 Baynham v. Holt, 8 Jur. 963.
180 LAW OF EVIDENCE. [PART Iv.

the admission, however made, in order to constitute an ac-
count stated, must have been made to the opposite party or
his agent.

§ 129. If the plaintiff claims the money in a particular
character or capacity, it will not be necessary for him to
prove that character, under the count upon an account
stated; for the defendant, by accounting with him in that
character, without objection, has admitted it.?

§ 129 a. Under either of the money counts, where the
plaintiff proves the payment or receipt of money, in coins
or bank-notes, without showing of what denomination, the
Jury will be directed to presume the coins or notes to have
been of the smallest denomination in circulation. Thus,
where the delivery of a bank-note was proved, the amount
of which did not appear, it was held that the Jury were
rightly directed to presume it a £5 note, that being the
lowest denomination issued.

§ 180. The defendant's answer, in an action of assumpsit,
is either by a plea in abatement, or by the general issue, or
by a special plea in bar. In abatement of the suit, the more
usual pleas are those of misnomer,‘ coverture, and the omis-
sion to sue a joint contractor. Under the liberality with
which amendments are permitted, the plea of misnomer is
now rarely tried. The plea of coverture is sustained by
evidence of general reputation and acknowledgment of the
parties and reception of their friends, as man and wife, and
of cohabitation as such. If coverture of the plaintiff is
pleaded, it seems that proof of a solemn and unqualified

 

1 Bates v. Townley, 2 Exch. R. 152; 12 Jur. 606.

2 Peacock v. Harris, 10 East, 104; Ante, Vol. 1, § 195.

3 Lawton v. Sweeney, 8 Jur. 964. And see also Dry Dock Co. v. McIn-
tosh, 2 Hill (N. Y.) R. 290.

4 See supra, tit, ABATEMENT, § 21.

5 Leader v. Barry, 1 Esp. 153 ; Kay v. Duchesse de Pienne, 8 Campb. 128;
Birt v. Barlow, 1 Doug. 171. See infra, tit. MARRIAGE.

>
PART Iv.] ASSUMBESIT. 131

admission by her, that she was married, will be sufficient to
support the plea; but that if the admission is coupled with
the expression of doubts as to the validity of the marriage,
it will not be sufficient

§ 131. If the defendant pleads in abatement, that he made
the contract jointly with other persons, named in the plea, but
not joined in the suit, the naming of these persons is taken
as exclusive ®f any others; and therefore if it is shown, that
there were more joint contractors, this will disprove the plea.
If to a declaration for work and labor, or upon several con-
tracts, the defendant pleads in abatement the non-joinder of
other contracts, it must be proved, that all the contracts
were made by, or that all the work was done for, the persons
named in the plea, and none others; for, if it should appear,
that one contract was made by, or one portion of the work °
was done for, the defendant alone, the plaintiff will have
judgment for the whole, though as to the residue of the
declaration, the plea is supported; for not being supported
as to the whole declaration to which it is pleaded, it is no
answer at ali. Therefore, where, to account for work done,
the defendants pleaded that it was done for them and certain
others, and the plaintiff proved, that it was done partly for
them, and the residue for them and the others, he had judg-
ment for the whole, the plea not being supported to the extent
pleaded.2 But where the suit was against A, B, and C, for
work done for them, and the defendants. pleaded the non-
joinder of D, and it appeared that one portion of the work
was done for A alone, another portion for A, B, C, and D,
a third portion for A, B, and D, and a fourth for A, and B,
but none for A, B, and C, only ; the plea was held supported,
as an answer to the action, the plaintiff failing to prove any

 

1 Mace v. Cadell, Cowp. 233; Wilson v. Mitchell, 3 Campb. 398.

2 Godson v. Good, 6 Taunt. 587; 2 Marsh. 299, 8. C.; Ela v. Rand, 4
N. Hamp. 307.

3 Hill». White & Williams, 6 Bing. N. C. 26; 8 Scott, 249,8.C.; 8
Dowl. P. C. 13, S. C.; 3 Jur. 1078. In this case, the case of Colson v.
Selby, 1 Esp. 452, was overruled.
182 LAW OF EVIDENCE. [PART Iv.

claim against the particular parties sued! If the persons not
joined are described in the plea as assignees of a bankrupt
contractor, the assignment itself must be proved, unless the
fact has been admitted by the other party; proof of their
having acted as such not being deemed sufficient? And in
the trial of this issue of the want of proper parties defendant,
the contracting party not sued, though ordinarily incompe-
tent as a witness for the defendant, by reason of his interest,
may be rendered competent by a release? *

§ 132. This plea, to a count for goods sold, may be sup-
ported by proof that they were ordered by the defendant joint-
ly with the other person named; or, that such had been the
previous and usual course of dealing between the parties;
or, that partial payments had been made on their joint
account. ,

§ 133. If one of two joint contractors is dead, and the sur-
vivor is sued, as the sole and several contractor, it will not be
sufficient for the plaintiff, in answer to a plea of non-joinder,
to reply the fact of his death, for this would contradict his
declaration upon a separate contract, by admitting a joint
one.* In all actions upon contract, the defendant has a right
to require that his co-debtor should be joined with him; and
the plaintiff cannot so shape his case, as to strip him of that
right, or of the benefit, whatever it may be, of having his dis-
charge stated on the record. The plaintiff is not at liberty, in
the first instance, to anticipate what may ultimately perhaps be
a discharge. The practice has ever been to join all the con-

 

1 Hill v. White, Williams & Boulter, 6 Bing. N. C. 23; 8 Scott, 245,
8. C.; 8 Dowl. P. C. 63, S. C.; 3 Jur. 1077, If some confess the action by
default, yet the plaintiff cannot have judgment unless he proves a contract
by all. Robeson v. Ganderton, 9 C. & P. 476; Elliott v. Morgan, 7 C. & P.
334,

2 Pasmore v. Bousfield, 1 Stark. R. 296. See further as to this plea,
supra, tit. ABATEMENT, §§ 24, 25.

3 Ante, Vol. 1, §§ 395, 426, 427.

4 Bovill v..Wood, 2 M. & §. 25, per Le Blane, J.
PART Iv.] ASSUMPSIT. 133

tracting parties on the record; thus giving to the party, who
is joined, notice at the time, and enabling him at any future
» time to plead the judgment recovered on the joint debt, with-
out the help of averments ; and likewise advancing him one
step in the proof, necessary in an action for contribution.
Such was the judgment of Lord Ellenborough, in a case in
which it was held, that, though one of the joint contractors
had become bankrupt and obtained his discharge, a replica-
tion of this fact was no answer to,a plea of non-joinder in
abatement; for though he was discharged by law, he was not
bound to take the benefit of it! If he pleads the discharge,
the plaintiff may enter a nolle prosequi as to him, and pro-
ceed against the other“ It has been held in England, that
this course was proper only in cases of bankruptcy; and that
a replication of infancy or coverture of the person not sued,
was a good answer to a plea of non-joinder; for that the
plaintiff could not, in such case, enter a nolle prosequi as to
one joint contractor, without discharging all, and therefore,
that he had. no remedy but in this mode.2 But in the Amer-
ican Courts, the entry of a nolle prosequi, and its effect, have
been regarded as matters of practice, resting in the discretion
of the Court; and accordingly, wherever one defendant
pleads a plea which goes merely to his personal discharge,
the contract, as to him, being only voidable, and not utterly
void, the plaintiff has been permitted to enter a nolle prose-
qui as to him and proceed against the others. It would
seem, therefore, that in the American Courts the replication
of infancy, or other personal immunity of the party not
joined, would not be a good answer to a plea of non-joinder

1 Bovill v. Wood, 2 M. & S. 23; 2 Rose, 155; Hawkins v. Ramsbottom, 6
Taunt. 179.

2 Noke v. Ingham, 1 Wils. 89.

3 Chandler v. Parks, 3 Esp. 76; Jaffray v. Frebain, 5 Esp. 47. See also
Burgess v. Merrill, 4 Taunt. 468; 1 Chitty on Plead. 49, 52.

4 Woodward v. Newhall, 1 Pick. 500; Hartness v. Thompson, 5 Johns.
160; Minor v. Mechanics’ Bank, 1 Peters, R. 46; Salmon v. Smith, 1 Saund.
207, (2,) by Williams. ; ;

VOL. II. 12
134 LAW OF EVIDENCE. [PART IV.

in abatement, unless such party had already made his elec-
tion and avoided the contract.

§ 134. Where the joint liability pleaded arises from part-
nership with the defendant, it must be proved to have openly
existed, not only at the time of making the contract, but in
the same business to which the contract related. The part-
nership may be proved by evidence of any of the outward
acts and circumstances, which usually belong to that rela-
tion, brought home to the knowledge of the plaintiff. But
if the partnership is dormant, and unknown to the plaintiff,
or, if it is known, but the omitted party is a secret partner,
this, as we have heretofore seen, is no objection to the suit.

§ 185. Almost all the defences to the action of asswmpsit, in
the United States, and, until a late period, in England, have
been made under the general issue. This plea, on strict prin-
ciple, operates only as a denial in fact of the express contract
or promise, where one is alleged, or of the maiters of fact
from which the contract or promise alleged may be implied
by law. But by an early relaxation of the principle, the de-
fendant, in actions on express contracts, was admitted, under
the general issue, to the same latitude of defence, which was
open to him in actions upon the common counts, and was
permitted to adduce evidence, showing that on any ground
common to both kinds of assumpsit, he was under no legal
liability to the plaintiff for that causé, at the time of plead-
ing’ The practice in the English Courts, by the recent rules,
has been brought back to its original strictness and consist-
ency with principle. In the United States, it remains, for the
most part, in,its former relaxed state; and accordingly where
it has not been otherwise regulated by statutes, the defendant,
under this issue, may give in evidence any matters, showing

 

Gibbs v. Merrill, 3 Taunt. 813, 314, per Mansfield, C. J.
2 Supra, tit. ABATEMENT, § 25; Story on Partnership, § 241; Collyer on
Partnership, pp. 424, 425.
3 Stephen on Pleading, p. 179-182.
oe

PART IV.] ASSUMPSIT. 135

that the plaintiff never had any cause of action; such as, the
non-joinder of another promisee; the defendant’s infancy ;
lunacy; drunkenness, or other mental incapacity ; or cover-
ture at the time of contracting; duress; want of considera-
tion ; illegality ; release or parol discharge or payment before
breach ; material alteration of the written contract; that the
plaintiff was an alien enemy at the time of contracting; or,
that the contract was void by statute, or by the policy of the
law ; non-performance of condition precedent, by the plain-
tiff; or, that performance on his own part was prevented by
the plaintiff, or by law, or, in certain cases, by the act of
God; or any the like matters of defence He may also give
in evidence many matters in discharge of his liability to the
plaintiff, such as, bankruptcy of the plaintiff, where this
would defeat the action; coverture of the plaintiff, where she
sues alone, and has no interest in the contract; payment;
accord and satisfaction; former recovery; higher security
given; discharge by a new contract; release; and the like?
So, in asswmpsit for use and occupation, the defendant under
this issue may show that he has been evicted by one who
had recovered judgment against his lessor, by virtue of a
paramount title, to whom he has attorned and paid the rent
subsequently accruing? Yet there are some matters in dis-
charge, which admit the debt, but go in denial of the remedy
only, that must be pleaded; namely, bankruptcy or insol-

 

1 1 Chitty on Plead. 417-420; Gould on Plead. ch, 6, § 46-50; Young
v. Black, 7 Cranch, 565 ; Cray v. Missouri, 4 Pet. 426; Wilt v. Ogden,
18 Johns. 56; Wailing v. Toll, 9 Johns. 141; Hilton v. Burley, 2 .N. Hamp.
193; Sill v. eal, 15 Johns. 230; Mitchell v. Kingnian, 5 Pick. 431; Os-
nal v. Spencer, 2 H. & G. 133. ‘Where the plaintiff sues upon a quantum
meruit, and the defendant has lost the opportunity of makiny a set-off, by not
complying with the rule requiring him to file a bill of particulars, he may
still show that the plaintiff’s demand was compensated at the time, by
services rendered, and that therefore no liability of the defendant ever
arose. Green v. Brown, 8 Barb. 8S. C. R. 119.

21 Chitty on Plead. 417-420; Gould on Plead. ch. 6, § 46-50; Edson
v. Weston, 7 Cow. 278; Drake v. Drake, 11 Johns. 531; Dawson v. Tibbs,
4 Yeates, 349; Young v. Black, 7 Cranch, 565; Offut v. Offut, 2 H. & G.
178; Wright v. Butler, 6 Wend. 284.

3 Newport v. Hardy, 10 Jur. 333.
136 LAW OF EVIDENCE. [PART LV.

vency of the defendant; tender ; set-off; and the statute of
limitations It is only where the special plea amounts to
the general issue, that is, where it alleges matter, which is
in effect a denial of the truth of the declaration, that such
plea is improper and inadmissible?

These defences being for the most part applicable to other

actions on contracts, will be treated under their appropriate
titles.

§ 136. In regard to the admissibility of evidence of failure,
or want of consideration, as a defence to an action of assump-
sit, there is an embarrassing conflict in the decisions. A dis-
tinction, however, has been taken between those cases where
the consideration was the conveyance of real property, and
those, where it was wholly of a personal nature, such as goods
or services; and also between a total and a partial failure of
the consideration. Where the consideration is personal in its
nature, and the failure ts total, or, the defendant has derived
no benefit at all from the services performed, or none beyond
the amount of money which he has already advanced, it seems
agreed, that this may be shown in bar of the action? If, in
an express contract for a stipulated price, the failure of a simi-
lar consideration is partial only, the defendant having derived
some benefit from the consideration, whether goods or services,
and the count is special, upon the express contract, the English
tule seems to be, not to admit it to be shown in bar pro tanto,
but to leave the defendant to his remedy by action ;* unless

 

1-1 Chitty on Plead. 420; Gould on Plead. ch. 6, § 51.

2 Gould on Plead. ch. 6, § 78; Steph. on Plead. 412.

3 Jackson v. Warwick, 7 T. R. 121; Templer v. McLachlan, 2 New R.
136, 189; Farnsworth v. Garrard, 1 Campb. 38; Dax v. Ward, 1 Stark. R.
409; Morgan v. Richardson, 1 Campb. 40, n.; 9 Moore, 159; Tye w.
Gwinne, 2 Campb. 346.

4 Templer v. McLachlan, 2 New R. 136; Franklin v. Miller, 4 Ad. &
El. 599; Grimaldi v. White, 4 Esp. 95; Denew v. Daverell, 3 Campb. 451;
Basten v. Butter, 7 East, 483, per Ld. Ellenborough; Sheels v. Davies, 4
Campb. 119; Crowninshield v. Robinson, 1 Mason, 98, acc. But see contra,
Okell v. Smith, 1 Stark. R. 107; Chapel v. Hickes, 2 Cr. & M. 214; 4
Tyrwh. 43 ; Cutler v. Close, 5 C. & P. 387.
PART Iv.] ASSUMPSIT. 187

the quantum to be deducted is matter susceptible of definite),
computation! But where the plaintiff proceeds upon general |
counts, the value of the goods or services may be appreciated |
by evidence for the defendant? The American Courts, to

 

1 Day v. Nix, 9 Moore, 159. See also Parish v. Stone, 14 Pick. 198,
210. 3

2 Denew v. Daverell, 3 Campb. 451; Basten v. Butter, 7 East, 479;
Farnsworth ». Garrard, 1 Campb. 38; Fisher v. Samuda, Id. 190; Kist v
Atkinson, 2 Campb. 63; Bilbie v. Lumley, 2 East, 469; 1 Mason, 95,
per Story, J., ace.; Miller v. Smith, Id.487; 2 Smith’s Leading Cases, pp.
14,15. In the second American edition of the last-cited work, the doctrine
recognized in this country, which seems to accord in its main principles with
that of Westminster Hall, is well stated in the notes of Mr. Wallace, as
follows: ‘“ Where there has been a special contract, and the plaintiff’s"
duty has been executed and closed, he may either declare specially on the’
contract, or maintain general assumpsit. It is important to observe the differ- |
ent ground on which these two actions rest, and the difference in the pro- |
ceedings to which they give rise. The special assumpsit is brought upon the’
express contract. Unless the plaintiff can show, that he has fulfilled with?
legal exactness all the terms of the contract, he can recover nothing. See!
Morford v. Mastin & Ambrose, 6 Monroe, 609; and compare with it 8. C.in
3 J. J. Marshall, 89; Taft v. The Inhabitants of Montague, 14 Mass. 282;
Gregory v. Mack, 3 Hill (N. Y.) 380. But if his performance has been
according to the terms of the contract, and has resulted in an available and
practical work of the kind required, so that the plaintiff is capable of main-
taining his special action at all, he is entitled at Common Law to recover the
whole compensation fixed by the contract, and the defendant must resort to
a cross-action, to recover damages for faults in the manner of performance,
or for breaches of a warranty. See Everett v. Gray et al. 1 Mass. 101, where
there was a special count. It is true that in such case, a recovery may be:
defeated by proof of fraud, for fraud vitiates every sale; but™upon a con-_
tract of sale, where performance has been accepted, the defendant cannot |
set up this defance, unless he has returned the article or given notice as \
soon as the variance is discovered, for thereby he rescinds his acceptance of :
the performance ; if he does not he cannot set up this defence, for the plain- '
tiff should have been allowed an opportunity to make other use of the arti- -
cle, and the defendant’s delay and silence would be a counter fraud in him;
unless he can show that the plaintiff could not possibly have been injured by ‘
the non-return, which is only where the article is wholly useless; therefore,
on a sale, a special count can only be defeated for fraud, where the article
has been returned, or is proved to be wholly worthless. Burton v. Stewart,
3 Wend. 236; Van Epps v. Harrison, 5 Hill, 64. See Thornton »v. Wynn,
12 Wheat. 183; Case v. John, 10 Watts, 107.”

12*

~S
138 LAW OF EVIDENCE. [PART Iv:

avoid circuity of action, have of late permitted a partial fail-
ure of consideration to be shown in defence pro tanto in all

 

“ But if the plaintiff, having executed his part of the contract, brings gen-
eral assumpsit, the ground of his recovery is not the defendant’s special con-
tract or promise, but he rests wholly on the implied legal liability of the
defendant, to recompense him for a service which has been done at the de-

' fendant’s request ; the defendant not being allowed to defeat the plaintiff by
setting up a special contract which he himself has broken, by not paying at
the appointed time. The nature of the action, and the legal ground of the
recovery, therefore, are precisely the same as they are where there has been
in fact no special contract at all; the rule that the plaintiff cannot recover
beyond the rates of recompense fixed by the contract, being merely a rule
of evidence, founded not only upon those rates being necessarily the most
reasonable measure of values in the particular case, but upon the consider-
ation that the defendant’s previous request, or subsequent acceptance, which
is relied upon, was conditioned upon the charges being at those specified
rates. Accordingly it results necessarily from the ground and nature of the
action, that, when the plaintiff declares generally, the defendant may show,
in reduction of damages, everything that goes directly to the consideration,
and immediately affects the value of the work; for the assumpsit which the
law implies, whether in quantum meruit, or indebitatus, is always commen-
surate with the actual final value of the article or work. This principle, in
respect to indebitatus assumpsit, is decided in Heck v. Shener, 4 Serg. &
Rawle, 249, the distinction being between those torts or breaches of con-
tract which go entirely to the consideration, and those which are dehors,
and collateral to it; the latter not being admissible. Gogel v. Jacoby, 5 S.
& R.117. The defendant, therefore, may show defects in the work or ser-
vice, and if the plaintiff refers to the contract as evidence of the fair price
of the work or article, the defendant may show that this price was predi-
cated upon a warranty of quality which has proved false; in short, from the
very nature of the claim which the plaintiff has chosen to make, the defend-
ant may prevent his recovering more than the real, inherent value of the
consideration. This is not an anomaly or innovation of the law; at: least,
the law has necessarily been thus ever since it has been settled that gen-
eral assumpsit is maintainable after the performance of a special contract;
it is evident from the cases cited in Basten v. Butter, 7 East, 479, and notes,
that Lord Kenyon had previously more than once ruled the point differently
from Buller, even if Broom v. Davis, ruled by the latter, was not, what it
probably was, a special count; and Lord Kenyon was not very greatly
given to innovation. The cases of Mills and others v. Bainbridge, and
Templer v. McLachlan, in 2 New Reports, 136, 137, accord entirely with
the distinction above noted ; the neglects there complained of, did not go to
the consideration of the assumpsits there declared upon, the service for
which the assumpsit was brought, having been, in both cases, completely
PART IV.] ASSUMPSIT. 189

suits on contracts respecting personal property or services ;!
only taking care that the defence shall not take the plaintiff

 

performed ; but were collateral torts. In this country it may be considered
as perfectly settled, that when the plaintiff brings general assumpsit, when
there has been a special contract, the defendant may give in evidence, in
reduction of damages, a breach of warranty, or a fraudulent misrepresenta-
tion, without a return of the article. McAllister v. Reab, 4 Wend. 483,
affirmed on error, in 8 Wend. 109; Still v. Hall, 20 Wend. 51; Batterman
v. Pierce, 3 Hill, (N. Y.) 172; Steigleman v. Jeffries, 1 Serg. & Rawle, 477,
&c. In like manner, defects in the work or article must be given in evi-
dence if this form of action be brought. ‘Grant v. Button, 14 Johns. 377;
King & Mead v. Paddock, 18 Johns. 141.” See 2 Smith’s Leading Cases,
pp. 27, 28, (2d Am. -ed.)

1 22 Am. Jur. 26; 2 Kent, Com. 473, 474; Barker v. Prentiss, 6 Mass.
430; Parish v. Stone, 14 Pick. 198; Folsom v. Mussey, 8 Green]. 400 ; Reed
v. Prentiss, 1 N. Hamp. 174; Shepherd v. Temple, 3 N. Hamp. 455; Hills
v. Banister, 8 Cowen, 31; McAllister v. Reab, 4 Wend. 483; Reab v.
McAllister, 8 Wend. 109; Todd vo. Gallagher, 16 S. & R. 261; Christy v.
Reynolds, Id. 258; Evans v. Gray, 12 Martin, 475, 647; Spalding v. Van-
dercook, 2 Wend. 431; Hayward v. Leonard, 7 Pick. 181; Cone v. Bald-
win, 12 Pick. 545; Pegg v. Stead, 9 C. & P. 636. In the case of Parish v.
Stone, above cited, the Jury found that a part of the consideration of the
note declared upon was for services rendered by the plaintiff to the defend-
ant’s testator, and that the residue was intended as a mortuary gift; and the
question was, whether the plaintiff was entitled to recover for that part only
which was good and valid in law. In delivering the judgment of the Court
upon this question, the law was thus stated by Shaw, C. J.: ‘‘ Had the note
been taken for two distinct liquidated sums, consolidated, and the considera-
tion had .been wholly wanting, or wholly failed as to one, it seems quite
clear, that according to well-established principles, supported by authorities,
the note, as between the original parties, and all those who stand in such
relation, as to allow the defence of want of consideration, it would be com-
petent to the Court to apportion the note, and consider it good in part, and
void in part, and to permit the holder to recover accordingly.

“In Bayley on Bills, (Phillips and Sewall’s ed.) 340, and in most other
text-books, it is laid down, that want or failure of consideration is a good
defence as between immediate parties, or holders without value, either total
or pro tanto, as the failure goes to the whole, or part of the consideration.
Barber v. Backhouse, Peake’s R. 61. Where there was originally no con-
sideration, for part of the sum expressed in the bill, the Jury may apportion
the damages; per, Ld. Kenyon. Darnell v. Williams, 2 Stark. R. 166.

“ That the holder in such case recovers on the note, and not on the original
consideration, is rendered manifest by another series of decisions, thereby
showing that the note is good pro tanio, as a negotiable instrument, upon
140 LAW OF EVIDENCE. [PART IV.

by surprise! But where the consideration consists of real
estate, conveyed by deed, with covenants of. title, promissory

 

which a holder by indorsement may sue and recover; whereas the right to
recover upon the original consideration would not be negotiable, and would
not vest in the holder of the note by indorsement.

“Tt being held that when a bill or note is made without value, or as an ac-
commodation note, this may be shown as a good defence, against the payee ;
it is also held as a principle absolutely essential to the currency of bills and
notes, that where an indorsee takes a bill for valuable consideration, or de-
rives title through any one who has paid value for it, he shall recover to the
amount, notwithstanding it was originally made without value, and as an
accommodation bill. It follows, as a necessary consequence, from these two
principles, that where an indorsee of an accommodation bill has taken it for
value, but for less than the amount expressed by the bill, there the holder
shall recover only to the amount for which he has given value. Jones v.
Hibbert, 2 Stark. R. 304. In that case the defendant accepted a Dill for
£415, to accommodate Phillips & Co., who indorsed it to their bankers for
value, and became bankrupt; the bankers knew it to be an accommodation
acceptance, and their demand against Phillips & Co. was £265 only; it was
held that they could only recover the £265, and they had a verdict accord-
ingly. [Snow v. Ware, 13 Met. 42; Bassett v. Sanborn, 9 Cush, 58.]

“So where a bill accepted as a gift to the payee is indorsed for a small
consideration, the indorser can recover only to that extent. Nash v. Brown,
Chitty on Bills, (5th edit.) 93.

“From these cases it is manifest, that the plaintiff recovers on the bill, and

“not on the original consideration ; otherwise the right to sue and recover pro
tanto would not pass to the indorsee by the negotiation of the bill. They
therefore establish the proposition, that where the parts of a bill are divisible,
making an aggregate sum, and as to one liquidated and definite part there
was a valuable consideration, and as to the other part there was no consider-
ation; the bill, as suck, may be apportioned; and a holder may recover for
such part as was founded on a good consideration.

“But it is contended that where the parts of the bill are not liquidated, and
distinguishable by computation, a different rule prevails, and several English
cases are relied on to show that though the consideration fails in part, the
whole bill is recoverable. Moggridge v. Jones, 14 East, 486; Morgan v.
Richardson, 1 Campb. 40, note; Tye v. Gwynne, 2 Campb. 346; Grant v.
Welchman, 16 East, 206. In these cases it was held, that where the note
was given for an entire thing, and the consideration afterwards failed in part,
the whole bill was recoverable, and the defendant was left to his cross-action.
As where the note was given for a lease, and the lease was not completed

1 Runyan v. Nichols, 11 Johns. 547; The People v. Niagara C. P. 12
Wend. 246; Reed v. Prentiss, 1 N. Hamp. 174, 176.
PART Iv.] ASSUMPSIT. 141

notes being given for the purchase-money, the better opinion’
seems to be, that on Common-Law principles, the covenants

 

according to contract; or for a parcel of hams, and they proved bad and
unmarketable ; or for goods, and they were of a bad quality and improperly
packed ; or for an apprentice-fee, and the apprentice was not kept by his
master.

“Tn this respect there seems to be some distinction between the English
decisions and those of New York. In the latter it was held, that upon a suit
between original parties, upon a note given upon a contract to manufacture
casks, the defendant might go into evidence to show that the casks were un-
skilfully manufactured, to reduce the amount of damages.

“ But without relying upon this difference, we think the English decisions
may be well reconciled, by a reference to the known distinction between
failure of consideration, and want of consideration.

“ All the cases put are those of failure of consideration, where the con-
sideration was single and entire, and went to the whole note, and was good
and sufficient at the time the note was given, but by some breach of contract,
mistake, or accident, had afterwards failed. here the rule is, if the consid-
eration has wholly failed, or the contract been wholly rescinded, it shall be
a good defence to the note. But if it have partially failed only, it would
tend to an inconvenient mode of trial and to a confusion of rights, to try
such question in a suit on the note, as a partial defence, and therefore the
party complaining shall be left to his cross-action. This distinction, and the
consequence to be drawn from it, is alluded to by Lord EVenborough in
Tye v. Gwynne, 2 Campb. 346. He says, ‘there is a difference between
want of consideration, and failure of consideration. ‘The former may be
given in evidence to reduce the damages; the latter cannot, but furnishes a
distinct and independent cause of action.’ It seems therefore, very clear,
that want of consideration, either total or partial, may always be shown by
way of defence; and that it will bar the action, or reduce the damages, from
the amount expressed in the bill, as it is found to be total or partial respec-
tively. It cannot, therefore, in such case, depend upon the state of the evi-
dence, whether the different parts of the bill were settled and liquidated by
the parties or not. Where the note is intended to be in a great degree
gratuitous, the parties would not be likely to enter into very particular
stipulations as to what should be deemed payment of a debt, and what a
gratuity. The rule to be deduted from the cases, seems to be this, that
where the note is not given upon any one consideration, which, whether
good or not, whether it fail or not, goes to the whole note at the time it is
made, but for two distinct and independent considerations, each going to a
distinct portion of the note, and one is a consideration which the law deems
valid and sufficient to support a contract, and the other not, there the con-
tract shall be apportioned, and the holder shall recover to the extent of the
valid consideration, and no further. In the application of this principle,
142 LAW OF EVIDENCE. [PART Iv.

in the deed constitute a sufficient consideration for the notes,
and that the failure of title constitutes no ground of defence
to an action upon them.! In some of the United States,
however, this defence has been allowed.

§ 136 a Where the contract is entire, the general rule is
that if the plaintiff has failed to-perform the whole on his
part, he can recover nothing; for being entire, it cannot be
apportioned. And this rule has been often applied to con-
tracts for labor and service for a certain term of time, where
the party had served only a part of the time. But it is also
conceded, that if the part performance of a contract is bene-
ficial to the promisee, and has been accepted by him, though
the other party can maintain no action upon the original con-
tract, his part of which he has failed to perform, yet he may
maintain a general assumpsit for the actual value of his labor
and materials which the promisee has accepted and enjoyed.
Whether the defence of failure of performance of the entire
contract, can be sustained in an action for the value of labor
and services, upon the common counts, is a question upon

 

there seems to be no reason why it shall depend upon the state of the evi
dence, showing that these different parts can be ascertained by computation ;
in other’ words, whether the evidence shows them to be respectively liqui-
dated or otherwise. If not, it would seem that the fact, what amount was
upon one consideration, and what upon the other, like every other question-
able fact, should be settled by a jury upon the evidence. This can never
operate hardly upon the holder of the note, as the presumption of law is in
his favor, as to the whole note; and the burden is upon the defendant to
show, to what extent the note is without consideration.” See 14 Pick.
208-211.

In New York the right of recoupment of damages is allowed, though the
damages result from a mere breach of contract, and are unliquidated; and
though the action be upon a specialty; under the provision of Rev. Stat.
Vol. 2, p. 504, § 96 [77]. See Van Epps v. Harrison, 5 Hill, 63; Batterman
v. Pierce, 3 Hill, 171; Ives v. Van Epps, 22 Wend. 155.

! Lloyd v. Jewell, 1 Greenl. 352,and note to 2d ed.; Howard v. Witham,
2 Green]. 390; Knapp v. Lee, 3 Pick. 452; Vibbard v. Johnson, 19 Johns.
77; Whitney v. Lewis, 21 Wend. 131, 184; Greenleaf v. Cook, 2 Wheat.
13; Fulton v. Griswold, 7 Martin, R. 223; 22 Am. Jur. 26; 2 Kent, Comm.
471-473.

2 2 Kent, Comm. 472, 473; 22 Am. Jur. 26.
4

PART IV.| ASSUMPSIT. 143

which Judges are not perfectly agreed. On the one hand, it
has been maintained with great force of reason, and so ad-
judged, that the party contracting for labor merely, for a cer-
tain period, does so with full knowledge that he must, from
the nature of the case, be accepting part performance from
day to day, if performance is commenced; and with knowl-
edge also, that the other may eventually fail of completing
the entire term ; and that, therefore, he ought to pay the rea-
sonable value of the benefit, which, upon the whole, he has
thus derived, over and above the damage which may have
accrued to him from the non-performance of the original
contract. But the general current of decisions is to the con-
trary; the Courts holding that this case is not to be distin-
guished in principle from other cases of failure to perform an
entire contract.”

1 Britton v. Turner, 6 N. Hamp. 481.

2 See Stark v. Parker, 2 Pick. 267 (2d ed.), notes; Olmstead v. Beale, 19
Pick. 528 ; Pordage v. Cole, 1 Saund. 320, n. (4); Peeters v. Opie, 2 Saund.
352, n. (3), by Williams; Badgley v. Heald, 5 West. Law Jour. 392. [One

‘who agrees to work for another a year for a certain sum named, payable
monthly if the former. wishes, may, at any time during the year, demand
payment of the wages due him for the entire months then elapsed; and his
right to monthly payments is not waived by neglecting to demand the same
monthly. White v. Atkins, 8 Cush. 367.]
®

144 LAW OF EVIDENCE. [PART IV.

ATTORNEYS.

§ 137. Unver this title, it is proposed to treat only of
Attorneys at Law, and of the remedies in general, and at
Common Law, between them and their clients, the subject
of attorneys in fact having been already treated under the
head of Agency. The peculiar remedies, given by statutes
and rules of Court, in England, and in some few of the
United States, being not common to all the American States,
and applicable to but few, will not here be mentioned.

§ 138. Actions by attorneys, as such, are ordinarily brought
either to recover payment for fees, disbursements, and pro-
fessional services, or to recover damages for slander of their
professional character. In the latter case, it seems generally
necessary for the plaintiff to prove, by the book of admis-.
sions, or by other equivalent record or documentary evidence,
that he has been regularly admitted and sworn; with proof
that he has practised in his profession. But where the slan-
derous words contained a threat by the defendant that he
would move the Court to have the plaintiff struck off the roll
of attorneys, this was held an admission that the plaintiff
was an attorney, sufficient to dispense with further proof?

§ 189. When the suit is by an attorney, for fees, &c., he
must prove his retainer, and the fees and services charged.
The retainer may be proved by evidence, that the defendant
attended upon the plaintiff, at his office, in regard to the busi-
ness in question ; or, that he personally left notices or exe-
cuted other directions of the plaintiff; or, that he was present

 

1 Jones v. Stevens, 11 Price, 235. And see Green v. Jackson, Peake’s
Cas. 236.
2 Berryman v. Wise, 4 T. R. 866; Ante, Vol. 1, § 195, note.
PART IV.] ATTORNEYS. 145

and assisting at the trial, while the plaintiff was managing
the cause in his behalf; or, that he has spoken of the plain-
tiff, or otherwise recognized him, as his attorney. If the
retainer was to commence a suit, which was afterwards
abated by a plea of non-joinder, this is sufficient evidence of
authority to commence another suit against the parties named
in the plea? So, after an award made against a party, a
retainer to “do the needful,” is an authority to do all that is
necessary on the part of the client, to carry the award into
complete effect.2 So, where money was placed in the attor-
ney’s hands to invest for his client, with discretionary power
“to do for her as he thought best,” and he lent the money
on mortgage, but discovering that the security was bad, sued
out a bailable writ against the borrower, in his client’s name,
it was held a sufficient retainer for this purpose.* It has,
however, been laid down as a general rule, that a special
authority must be shown to institute a suit, though a general
authority is sufficient to defend one; and accordingly, where
one, acting under a general retainer, as solicitor, undertook
to defend a suit at law brought against his client, upon cer-
tain promissory notes, and filed a bill in Chancery to restrain
proceedings in that suit, the bill was ordered to be dismissed,
with costs, to be paid by the solicitor, as having been filed
without authority.6 If two attorneys occupy the same office,

 

1 Hotchkiss v. Le Roy, 9 Johns. 142; Burghart v. Gardner, 3 Barb. 8. C.
R. 64. Sworn tu ah answer signed by the attorney. Harper v. Williamson,
1 McCord, 156. But where one attorney does business for another, it is
presumed to be done on the credit of the attorney who employed him, and
not of the client. Scrace v. Whittington, 2B. &C.11. [The authority of
an attorney who has been employed by adirector, or other analogous officer,
of a corporation, to appear for it, without any specific vote therefor, and who
has been paid for his services by the corporation, is sufficiently proved.
Field v. Proprietors, &c. 1 Cush. 11. See also, Manchester Bank v. Fellows,
8 Foster, (N. H.) 802.]

2 Crook v. Wright, Ry. & M. 278.

3 Dawson v. Lawley, 4 Esp. 65.

4 Anderson v. Watson, 3 C. & P. 214. But see Tabran v. Horn, 1 M. &
R. 228.

5 Wright v. Castle, 3 Meriv. 12.

VOL. IL. 13
146 LAW OF EVIDENCE. [PART Iv.

one being ostensibly the principal, and the other his clerk,
under an agreement, that the latter shall receive all the bene-
fit of the Common-Law business, those who employ the per-
sons in the office, will be presumed to employ them upon the
terms on which business is there done; and, therefore, in a
suit by the clerk for the fees of Common-Law business, those
terms are competent evidence of a retainer of him alone.}
So, where two attorneys dissolved an existing partnership
between them, but a client, with means of knowledge of that
fact, continued to instruct one of them in a matter originally
undertaken by the firm, this was held sufficient evidence that
the joint retainer had ceased.”

§ 140. But where solicitors are in partnership, they can-
not dissolve their partnership, as against the client, without
his consent, so as to discharge the retiring partner from lia-
bility ; much less can the retiring partner, in such case, ac-
cept a retainer from the opposite party.’

§ 141. The effect of a retainer to prosecute or defend a suit,
is to confer on the attorney all the powers exercised by the
forms and usages of the Court, in which the suit is pending.

 

1 Pinley v. Bagnall, 3 Doug. 155. So, if both, being partners, were in
fact employed, but only one was an attorney of the Court, and did the busi-
ness there, yet both may jointly recover. Arden v. Tucker, 4 B. & Ad. 815;
5 C. & P. 248. Unless the other was but a nominal partner. Kell rv.
Nainby, 10 B. & C. 20. And see Ward v. Lee, 13 Wend. 41; Simon v.
Bradshear, 9 Rob. R. 59, (Louis.)

2 Perrins v. Hill, 2 Jurist, 858.

3 Cholmondeley (Earl of) v. Ld. Clinton, Coop. Ch. Ca. 80; 19 Ves. 261,
278, S. C.; Cook v. Rhodes, 19 Ves. 273, note; [Walker v. Goodrich, 16
Ill. 341.)

4 Smith v. Bosard, 2 McCord, Ch. 409. [Where a sworn attorney of the
Court enters his appearance for a party, the party is bound by any admis-
sions made by him in writing, though out of Court, concerning the facts in
the cause, until the appearance is withdrawn, or the party revokes the attor-
ney’s authority, and gives notice of the revocation ; and until the appearance
is withdrawn, or the authority revoked and the revocation notified, the par-
ty cannot give evidence, on the trial of the cause, that the attorney had no
authority in fact. Lewis v. Sumner, 13 Met. 269.]
PART IV.] ATTORNEYS. 147

He may receive payment;! may bring a second suit after
being nonsuited in the first for want of formal proof ;? may
sue a writ of error on the judgment;* may discontinue the
suit ;* may restore an action after a nol. pros.;® may claim
an appeal, and bind his client by a recognizance in his name
for the prosecution of it;® may submit the suit to arbitra-
tion ;* may sue out an alias execution ;* may receive livery
of seisin of land taken by extent;°. may waive objections
to evidence, and enter into stipulations for the admission
of facts, or conduct of the trial; 1 and for release of bail ;
may waive the right of appeal, review, notice, or the like,
and confess judgment. But he has no authority to exe-
cute any discharge of a debtor, but upon the actual pay-
ment of the full amount of the debt,® and that in money

 

1 Langdon v. Potter, 13 Mass. 320; Brackett v. Norton, 4 Conn. 517;
Gray v. Wass, 1 Greenl. 257; Erwin v. Blake, 8 Pet. 18; Com’s v. Rose,
1 Desaus. 469; Hudson v. Johnson, 1 Wash. 10; [Ducett v. Cunningham,
39 Maine, 386.]

Scott v. Elmendorf, 12 Johns. 315.
Grosvenor v. Danforth, 16 Mass. 74.
Gaillard v. Smart, 6 Cow. 385.
Reinhold v. Alberti, 1 Binn. 469.
Adams v. Robinson, 1 Pick. 462.

7 Somers v. Balabrega, 1 Dall. 164; Holker v. Parker, 7 Cranch, 436;
Buckland v. Conway, 16 Mass. 396; [Abbe v. Rood, 6 McLean, 196. He
may submit it to arbitration by rule of Court, but in no other way. Markley
v. Amos, 8 Rich. (S. C.) 468.]

8 Cheever v.-Merrick, 2 N. Hamp. 376. [An attorney may sign an
amended petition to County Commissioners to alter a town way, although
the original petition was signed by the petitioners'in person. New Marl-
borough v. County Commissioners, 9 Met. 423.

9 Pratt v. Putnam, 13 Mass, 363.

10 Alton v. Gilmanton, 2 N. Hamp. 520.

11 Hughes v. Hollingsworth, 1 Murph. 146.

12 Pike v. Emerson, 5 N. Hamp. 393; Talbott v. McGee, 4 Monr. 377 ;
Union Bank of Georgetown v. Geary, 5 Pet. 99.

13 Savory v. Chapman, 8 Dowl. 656; Jackson v. Bartlett, 8 Johns. 361;
Kellogg v. Gilbert, 10 Johns. 220; 5 Pet. 113; Gullet v. Lewis, 3 Stew. 23;
Carter v. Talcott, 10 Verm. 471; Kirk v. Glover, 5 Stew. & Port. 34;
Tankersly v. Anderson, 4 Desaus. 45 ; Simonton v. Barrell, 21 Wend. 362;
[Lewis v. Gamage, 1 Pick. 347; Wilson v. Wadleigh, 36 Maine, 496 ;
32 Ib. 110; Derwort v. Loomer, 21 Conn. 245; Kent ». Ricards, 3 Md. Ch,

an Fr WH
148 LAW OF EVIDENCE. [PART Iv.

only ;! nor to release sureties ;? nor to enter a retrazit ;® nor
to act for the legal representatives of his deceased client ;*
nor to release a witness5

§ 142. In regard to the conduct of business by the attorney
for his client, he must show, that he has done all that he
ought to have done. Though he is generally bound to fol-
low the instructions of his, client, yet he is not bound to do

 

Decis. 392; Stackhouse v. O’Hara, 14 Penn. State R. (2 Harris,) 88;
Walker v. Scott, 8 Eng. (18 Ark.) 644.]

1 Com’s v. Rose, 1 Desaus. 469 ; Treasurers v. McDowell, 1 Hill, (8. Car.)
Rep. 184; Nolan v. Jackson, 16 Ill. 272; McCarver v. Nealey, 1 Iowa,
(Greene,) 360. He may take payment of a part in money and the residue
in a short undoubted note. Livingston v. Ratcliff, 6 Barb. 201.]

2 Givens v. Briscoe, 3 J. J. Marsh. 532. [Nor to make an agreement
which will release an indorsee. Warnum v. Bellamy, 4 McLean, 87.]

3 Lambert v. Sandford, 3 Blackf. 137.

4 Wood v. Hopkins, 2 Penningt. R. 689; Campbell v. Kincaid, 3 Monr.
566.

5 Marshall v. Nagel, 1 Bailey, 308; [Browne v. Hyde, 6 Barb. 392. Nor
has he authority, by virtue merely of his retainer, to prosecute or defend a
suit, to release a claim of his client on a third person for the purpose of
making such person a competent witness for his client, Shores v. Caswell,
13 Met. 413; nor to execute a bond to the Probate Court upon an appeal,
Clark v. Caursen, 9 Foster, (N. H.)170. An attorney’s bond in the name
of the principal to indemnify a sheriff, though made by parol authority, will
bind the principal, as a simple contract, Ford v. Williams, 3 Kernan, (N. Y.)
377. An attorney cannot execute a replevin bond for his client; but such
bond is voidable, and the client may adopt it, Narraguagus v. Wentworth,
36 Maine, 339; nor assign the judgment, or execution, Wilson v. Wadleigh,
Ib. 496; nor can he release or postpone the judgment lien on lands created
in a suit begun by himself on a claim given him to collect, Wilson v. Jen-
nings, 8 Ohio, (N. 8.) 528; Doub v. Barnes, 1 Md. Ch. Decis. 127; nor
release a garnishee from his attachment, Quarles v. Porter, 12 Mis. 76; nor
compromise and discontinue a suit brought for the land of his client, in con-
siderdtion that the defendant has conveyed to him a portion thereof, Filby
v. Miller, 25 Penn. State R. 264.]

6 Allison v. Rayner, 7 B. & C. 441; 1 M. & R. 241, S. C.; Gill v.
Lougher, 1 Cr. & J. 170; 1 Tyrwh. 121, 8. C.; Godefroy v. Jay, 7 Bing.
413. [Ina suit on a spacial contract for sieteatuiel services under the
allegation of the performance thereof, the attorney may show performance
by another attorney with the defendant’s consent. Smith v. Lipscomb, 13
Texas, 532.]
PART IV.] ATTORNEYS. 149

what is intended merely for delay, or is otherwise in viola-
tion of his duty to the Court Generally speaking, the
contract of an attorney or solicitor, retained to conduct or
defend a suit, is an entire and continuing contract to carry it
on until its termination ; and if, without just cause, he quits
his client before the termination of the suit, he can recover
nothing for his bill2 But he may refuse to go on without
an advance of money, or without payment of his costs in
alrear, upon giving reasonable notice to his client; or, for
just cause, and upon reasonable notice, he may abandon the
suit; and in either case he may recover his costs up to that
time But he cannot insist upon the payment of moneys
due on any other account.!

§ 143. In the defence of an action for professional fees
and services, besides denying and disproving the retainer,
the defendant may show, that the plaintiff has not exercised
the reasonable diligence and skill, which he was bound to
employ; and may depreciate the value of the services, upon
a quantum meruit, by any competent evidence. Whether
negligence can be set up as a defence to an action for an
attorney’s bill of fees, is a point which bas been much ques-
tioned. If the services have proved entirely useless, it has

 

1 Johnson v. Alston, 1 Campb. 176; Pierce v. Blake, 2 Salk. 515; Vin-
cent v. Groome, 1 Chitty, R. 182; Anon. 1 Wend. 108; Gilbert v. Williams,
8 Mass. 51. ‘

2 Harris v. Osbourn, 4 Tyrwh. 445; 2 Cr. & M.629, S. C.; Cresswell v.
Byron, 14 Ves. 271; Anon. 1 Sid. 31, pl. 8; 1 Tidd’s Pr. 86, (9th edit.) ;
Love v. Hall, 3 Yerg. 408; [Whitehead v. Lord, 11 Eng. Law & Eq. 587.
The authority of an attorney to commence and prosecute a suit is revoked
by the death of the constituent, and he has no authority without a new
retainer, to appear in the suit for the constituent’s executor or administra-
tor. Gleason v. Dodd, 4 Met. 333; Palmer v. Reiffenstein, 1 Man. & Gran.
94; Shoman v. Allen, Ib. 96, note.]

3 Lawrence v. Potts, 6 C. & P. 428; Wadsworth v. Marshall, 2 C. & J.
665; Vansandauv. Browne, 9 Bing. 402; Rowson v. Earle, Mood. & M. 538;
Hoby v. Built, 3 B. & Ad. 350; Gleason v. Clark, 9 Cowen, 57; Castro v.
Bennett, 2 Johns. 296.

4 Heslop v. Metcalf, 8 Sim. 622.

13 *
150 LAW OF EVIDENCE. [PART IV.

long been agreed, that this may be shown in bar of the
whole action; and, after some conflict of opinions, the
weight of authority seems in favor of admitting any com-
petent evidence of negligence, ignorance, or want of skill,
as a defence to an action for professional services, as well as
for any other work and labor+

§ 144. An attorney undertakes for the employment of a
degree of skill, ordinarily adequate and proportionate to the
business he assumes. Spondet peritiam artis. Imperitia
culpe adnumeratur2 Reasonable skill constitutes the meas-
ure of his engagement.? “Attorneys,” said Lord Mansfield,
“ought to be protected when they act to the best of their
skill and knowledge; and I should be very sorry that it
should be taken for granted, that an attorney is answerable
for every error or mistake, and to be punished for it by being
charged with the debt, which he was employed to recover
for his client, from the person who stands indebted to him.
A counsel may mistake, as well as an attorney. Yet no one
will say that a counsel, who has been mistaken, shall be
charged with the debt. The counsel, indeed, is honorary in
his advice, and does not demand a fee;* the attorney may
demand a compensation. But neither of them ought to

 

1 See supra, ASSuMPSIT, § 136, and cases there cited; Kannen v. Mc-
Mullen, Peake’s Cas. 59; Chapel v. Hicks, 2 C. & M. 214; 4 Tyrwh. 43;
Cutler v. Close, 5 C. & P. 337; Cousens v. Paddon, 5 Tyrwh. 535; Hill v.
Featherstonhaugh, 7 Bing. 569; Montriou v. Jefferys, 2 C. & P. 118; Hunt-
ley v. Bulwer, 6 Bing. N. C. 111; Grant v. Button, 14 Johns. 377; Brack-
ett v. Norton, 4 Conn. 517; But see Templer v. McLachlan, 2 New Rep.
136; Runyan v. Nichols, 11 Johns. 547.

2 Story on Bailm. § 431.

8 Story on Bailm. §§ 432, 433; Reece v. Rigby, 4 B. & A. 202; Ireson v.
Pearman, 3 B. & C. 799; Hart v. Frame, 3 Jur. 547; 6 Cl. & Fin. 193;
Lanphier v. Phipos, 8 C. & P. 475; Davies vr. Jenkins, 11 M. & W. 745;
[Wilson v. Coffin, 2 Cush. 216; Holmes v. Peck, 1 Rhode Island, 242;
Parker v. Rolls, 28 Eng. Law & Eq. 424; Cox »v. Sullivan, 7 Geo. 144.]

4 Inthe United States, the offices of attorney and counsellor are so fre-
quently exercised by the same person, that they have become nearly blended
into one; and actions for compensation for services performed in either
capacity are freely sustained in most if not all the States of the Union.
PART IV.] ATTORNEYS. 151

be charged with the debt for a mistake.”1 In a more re-
cent case, the law on this subject was thus stated by Lord
Brougham: “It is of the very essence of this kind of action
that it depends, not upon the party having been advised by
a solicitor or attorney in a way in which the result of the
proceeding may induce the party to think he was not ad-
vised properly, and may, in fact, prove the advice to have
‘been erroneous ; — not upon his having received, if I may so
express it in common parlance, bad law, from the solicitor ;
nor upon the solicitor or attorney having taken upon himself ,
to advise him, and, having given erroneous advice, advice
which the result proved to be wrong, and in consequence of
which error, the parties suing under that mistake were de-
prived and disappointed of receiving a benefit. But it is
of the very essence of this action that there should be a
negligence of a crass description, which we shall call crassa
negligentia, that there should be gross ignorance, that the
man who has undertaken to perform the duty of attorney, or
of a surgeon, or an apothecary, (as the case may be,) should
have undertaken to discharge a duty professionally, for which
he was very ill qualified, or, if not ill qualified to dis-
charge it, which he had so negligently discharged as to dam-
nify his employer, or deprive him of the benefit which he
had a right to expect from the service. That is the very
ground Lord Mansfield has laid down in that case,? to which
my noble and learned friend on the woolsack has referred a
little while ago, and which is also referred to in the printed
papers. It was ‘still more expressly laid down by Lord’
Ellenborough in the case of Baikie v. Chandless,? because
there Lord Ellenborough uses the expression, ‘ an attorney is
only liable for crassa negligentia ; therefore, the record must
bring before the Court a case of that kind, either by stating
such facts as no man who reads it will not at once perceive,

 

1 Pitt v. Yalden, 4 Burr. 2061. And see Compton v. Chandless, cited
3 Campb. 19; Kemp v. Burt, 4 B. & Ad. 424; Shileock v. Passman, 7 C, &
P. 289: ‘

2 Pitt v. Yalden, 4 Burr. 2060.

33 Campb. 17.
152 LAW OF EVIDENCE. [PART IV.

although without its being alleged in terms, to be crassa
negligentia, — something so clear that no man can doubt of
it; or, if that should not be the case, then he must use the
very averment that it was crassa negligentia.” }

 

1 Purves v. Landell, 12 Clark & Fin. 91, 98,99. This was an action in
Scotland, against a writer to the signet, for advising and conducting an im-
proper and irregular mode of procedure against a debtor, which proved
fruitless and expensive to the plaintiff, and resulted in large damages recov-
ered against him in an action for false imprisonment. The action ultimately
failed, for want of any allegation and proof of gross ignorance or gross neg-
ligence on the part of the attorney or law agent. Lord Campbell, in deliv-
ering his opinion, in which the other Lords concurred, expressed himself as
follows: ‘In an action such as this, by the client against the professional
adviser, to recover damages arising from this misconduct of the professional
adviser, I apprehend there is no distinction whatever between the law of

} Scotland and the law of England. The law must be the same in all coun-
tries where law has been considered as a science. The professional adviser
has never been supposed to guarantee the soundness of his advice. I am
sure I should have been sorry, when I had the honor of practising at the
Bar of England, if barristers had been liable to such a responsibility.
Though I was tolerably cautious in giving opinions, I have no doubt that I
have repeatedly given erroneous opinions; and I think it was Mr. Justice
Heath, who said that it was a very difficult thing for a gentleman at the Bar
to be called upon to give his opinion, because it was calling upon him to
conjecture what twelve other persons would say upon some point that had
never before been determined. Well, then, this may happen in all grades
of the profession of the law. Against the barrister in England, and the
advocate in Scotland, luckily no action can be maintained. But against the
attorney, the professional adviser, or the procurator, an action may be main-
tained. But it is only if he has been guilty of gross negligence, because it
would be monstrous to say that he is responsible for even falling into what
must be considered a mistake. You can only expect from him that he will
be honest and diligent; and if there is no fault to be found either with his
integrity or diligence, that is all for which he is answerable. It would be
utterly impossible that you could ever have a class of men who would give
a guaranty, binding themselves, 1 in giving legal advice and conducting suits
at law, to be always in the right.

“ Then, my Lords, as crassa negligentia is certainly the gist of an action
of this sort, the question is whether in this summons that negligence must
not either be averred or shown? This is not any technical point in which
the law of Scotland differs from the law of England. I should be very sorry
to see applied, and I hope this House would be very cautious in. applying,
technical rules which prevail i in England to proceedings in Scotland. But I
apprehend that, in this respect, the laws of the two countries do not differ,
PART Iv.| ATTORNEYS. 153

§ 145. More particularly, an attorney is held liable for the
consequence of ignorance or non-observance of the rules of
practice of the Court; for the want of proper care in the prep-
aration of a cause for trial, or of attendance thereon, and
the use of due means for-procuring the attendance of the
witnesses ; and for the mismanagement of so much of the
cause, as is usually and ordinarily allotted to his department
of the profession. But he is not answerable for error in judg-
ment upon points of new occurrence, or of nice and doubtful
construction, or of a kind usually intrusted to men in another
or higher branch in the profession If he undertakes the
collection of a debt, he is bound to sue out all process ne-
cessary to that object. Thus, he is bound to sue out the
proper process against bail;? and against the officer, for
taking insufficient bail, or for not delivering over the bail-
bond ;? and to deliver an execution to the officer, in proper
season after judgment, to perfect and preserve the lien created
by the attachment of property on mesne process ;* but not to
attend in person to the levy of the execution.® If he doubts
the expediency of further proceeding, he should give notice
to his client, and request specific instructions ;® without
which, it seems, he would be justified in not prosecuting, in
cases where he is influenced by a prudent regard to the inter-
ests of his client.’

 

and that the summons ought to state, and must state, what is necessary to
maintain the action; this summons must either allege negligence, or must
show facts which inevitably prove that this person has been guilty of gross
negligence.” Ibid. pp. 102, 103.

1 Godefroy v. Dalton, 6 Bing. 467, per Tindal, C.J. And see Lynch v.
The Commonwealth, 16 8. & R. 368.

2 Dearborn v. Dearborn, 15 Mass. 316; Crooker v. Hutchinson, 1 Verm.
73.

3 Crooker v. Hutchinson, 1 Verm. 73; Simmons v. Bradford, 15 Mass.
82.

4 Phillips v. Bridge, 11 Mass. 246. And see Pitt v. Yalden, 4 Burr. 2060;
Russell v. Palmer, 2 Wils. 325. ~

5 Williams v. Reed, 3 Mason, 405.

6 Dearborn v. Dearborn, 15 Mass. 316.

7 Crooker v. Hutchinson, 2 Chipm. 117.
x

154 LAW OF EVIDENCE. [PART Iv.

§ 146. For every violation of his duty, an action lies tmme-
diately against the attorney, even though “merely nominal
damages are sustained at the time; for it is a breach of his
contract ; but actual damages may be recovered for the direct
consequences of the injury, even up to the time of the ver-
dict. The damages do not necessarily extend to the nom-
inal amount of the debt lost by the attorney’s negligence, but
only to the loss actually sustained.?

§ 147. An attorney, being an officer of the Court in which
he is admitted to practise, is held amenable to its summary
jurisdiction, for every act of official misconduct.? The matter
is shown to the Court.by petition or motion, ordinarily sup-
ported by affidavit; and the order of the Court, after hearing,
is enforced either by attachment, or by striking his name from
the roll. If he neglects or refuses to perform any stipulation
or agreement entered into by him with the counsel or attorney
of the other party, respecting the management or final disposi-
tion of the cause, or touching the trial, or the proofs; or fails
to pay or perform anything, which he has personally under-
taken that his client shall pay or perform; or improperly
refuses to deliver up documents to his client, who intrusted
them to him; or to pay over to his client any moneys which
he has collected for him; he is liable to this summary mode
of proceeding, as well as to an action at law. But for mere

 

1 Wilcox v. Plummer, 4 Peters, R. 172. And see Marzetti v. Williams,
1B. & Ad. 415.

2 Dearborn v. Dearborn, 15 Mass. 316; Crooker v. Hutchinson, 2 Chipm.
117; Huntington v. Rumnill, 3 Day, 390. And see infra, § 599; [Cox v.
Sullivan, 7 Geo. 144.]

3 In several of the American States, persons of full age, and qualified as
the statutes of those States prescribe, are entitled to admission to practise as
attorneys in any of the Courts, and it is made the duty of the Judges to ad-
mit them accordingly. Whether persons of this class are amenable to the
summary jurisdiction of the Courts, has been doubted. If they are not, this
fact shows the great impolicy of popular interference with the forms of ad-
ministering justice, since in this case the legislatures will have unconsciously
deprived the people of the benefit of one of the strongest securities for pro-
fessional good conduct.

41 Tidd’s Practice, 85-90, (9th edit.); Sharp ce. Hawker, 2 Bing: N.C,
PART Iv.] ATTORNEYS. 155

negligence in the conduct of his client’s business, the Courts
will not interfere in this manner, but will leave the party to
his remedy by action.}

§ 148. Where the remedy against an attorney is pursued
by action at law, and the misconduct has occasioned the loss
of a debt, the existence of the debt isa material fact to be
shown by the plaintiff. If it were a judgment, this is proved
by a copy of the record, duly authenticated If not, and an
arrest of the debtor upon mesne process is a material allega-

 

66; De Wolfe v. , 2 Chitty, R. 68; Jn re Fenton, 3 Ad. & El. 404;
Inre Atkin, 4B. & A. 47. To support the action for moneys collected, it is
essential to prove a demand made on the attorney. Satterlee v. Frazer,
2 Sandf. 8. C. R. 141; [Pennington v. Yell, 6 Eng. (Ark.) 212; In re
Wills, 1 Mann, (Mich.) 392. It would be a great misdemeanor in an attor-
ney, rendering him liable to censure and punishment as well as to an action
for damages in a proper case, if he were to enter an appearance without
authority. Smith v. Bowditch, 7 Pick. 137; Lewis v. Sumner, 13 Met. 269.
Ignorance of the law is not good cause for removing or suspending an attor- .
ney from practice. Bryant’s case, 4 Foster, (N. H.) 149.

An attorney when delivering up papers intrusted to him, is bound to de-
liver them up in a reasonable state of arrangement, so that the party to whom
they are delivered may not be put to unreasonable trouble in sorting them.
Northwestern Railway Co. v. Sharp, 28 Eng. Law & Eq. R. 555. Minutes
of testimony taken by counsel in the trial of an action in which he is re-
tained, belong to himself and not to his client. Anon. 31 Maine, 590. An,
agreement between an attorney and his client that the former shall pay the
costs of an action be has brought for his client if unsuccessful, is illegal and
void, and cannot be enforced by the client. Low v. Hutchinson, 37 Maine,
196. Ifan attorney, suspecting that his client is engaged in a systematic
course of fraud and forgery, continues to act for him as if he were assisting to
enforce just rights and to give effect to genuine documents, he is guilty of
gross misconduct, although not originally privy to the frauds, and although
never informed of the manner in which the forged documents were obtained,
and although, to carry on the imposture, persons may be introduced to him
acting in a feigned name. Jn re Barber, 6 Eng. Law & Eq. R. 338. Where
an attorney has fraudulently misapplied money received from his client for
a specific purpose, the Court will exercise its summary jurisdiction by order-
ing him to pay the money, although he has obtained a certificate of protec-
tion from the Bankruptcy Court. In re —~—, 30 Eng. Law & Eq. R. 390.]

1 Brazier v. Bryant, 2 Dowl. P. C. 600; Jn re Jones, 1 Chitty, R. 651.

2 Ante, Vol. 1, § 501-514.

 
156 LAW OF EVIDENCE. [PART IV.

tion, the writ must be proved by itself, or by secondary evi-
dence, if lost; unless it has been returned; in which case
the proof is by copy. If the injury to the plaintiff was occa-
sioned by departure from the known and usual course of
practice, this should be shown by the evidence of persons
conversant with that course of practice! The fact of in-
debtment to the plaintiff, by his debtor, must also be proved
by other competent evidence, where it has not yet passed
into judgment. In short, the plaintiff has to show, that he
had a valid claim, which has been impaired or lost by the
‘ negligence or misconduct of the defendant.2. And if the
attorney, having received money for his client, mixes it with
his own, in a general deposit with a banker in his own name,
and the banker fails, the attorney is liable for the loss. He
should have deposited it in his client’s name, or otherwise
designated it as money held by him in trust for his client, so
ear-marked as to be capable of precise identification.

§ 149. If the injury to the plaintiff resulted from the attor-
ney’s neglect in regard to a conveyance of title, or in the
examination of evidences of title, it is, ordinarily, necessary
to produce the deeds or documents in question ; whether the
neglect were in a case drawn up, for the opinion of counsel,
in which certain deeds materially affecting the title were
omitted ;‘ or, in the insertion of unusual and injurious cove-
nants of title in a lease, without informing him of the con-
sequences ;° or, in advising him, or acting for him, in the
investment of money under a will, upon the perusal of only
a partial extract from the will, and not of the entire will
itself;® or, were any other misfeasance or neglect as a pro-
fessional agent in the conveyance of title. And if the client
has thereby been evicted from the land, he should prove the

 

1 Russell v. Palmer, 2 Wils. 325, 328.

21 Steph. N. P. 434. And see infra, § 599.
3 Robinson v. Ward, 2 C. & P. 59.

4 Treson v. Pearman, 3 B. & C. 799.

5 Stannard v. Ullithorne, 10 Bing. 491.

6 Wilson v. Tucker, 3 Stark. R. 154.
“PART IV.] ATTORNEYS. 157

eviction by a copy of the judgment, and by the writ of pos-
session duly executed ;1 or, if he has peaceably submitted
to an entry and ouster without suit, he must show that it
was in submission to an elder and better title.”

 

11 Steph. N. P. 484. And see Gore v. Brazier, 3 Mass. 543.
2 Hamilton v. Cutts, 4 Mass. 849; Sprague v. Baker, 17 Mass. 586, 590.

VOL. II. 14
158 LAW OF EVIDENCE. [PART Iv.

BASTARDY.

§ 150. By the Common Law, children born out of lawful
wedlock are bastards. By the Roman Law, if the parents
afterwards intermarried, this rendered the issue legitimate.
The rule of the Common Law prevails in the United States,
except where it has been altered by statutes; which in sev-
eral of the States have been enacted, introducing, under vari-
ous modications not necessary here to be mentioned, the
rule of the Roman Law.) The modern doctrine of the Com-
mon Law on this subject is this: that where a child is born
during lawful wedlock, the husband not being separated
from the wife by a sentence of divorce a mensé et thoro, it
is presumed that they had sexual intercourse, and that the
child is legitimate; but this presumption may be rebutted
by any competent evidence tending to satisfy a Jury, that
such intercourse did not take place at any time, when, by the
laws of nature, the husband could have been the father of
the child? If the husband and wife have had opportunity

 

*

1In New Hampshire, Connecticut, Rhode Island, New York, New Jersey,
Pennsylvania, Delaware, South Carolina, Tennessee, and Arkansas, the rule
of the Common Law is understood to prevail. A subsequent marriage of
the parents renders their prior issue legitimate in Kentucky, Alabama, IIli-
nois, Louisiana, Michigan, and Missouri. Beside the marriage, a subsequent
acknowledgment of the child by the father is requisite in Indiana, Ohio,
Vermont, Virginia, Maine, and Afassachusetts. In Alaine, other issue must
have been born, after the marriage.. In Afassachusetis, the child can inherit
only from its parents. In North Carolina, a decree of legitimacy in favor of
ante-nuptial issue is obtained from the Courts, on application of the father,
after the marriage. See 3 Cruise’s Dig. tit. 29, ch. 2, § 8, note, (Greenleaf’s
ed.) where the laws of the several States on this subject are more particu-
larly stated. [A child born in wedlock, though within a month or a day
after marriage, is presumed to be legitimate; and when the mother was visi-
bly pregnant at the time of the marriage, it is presumed that the child is the
offspring of the husband. State v. Herman, 18 Ired. 502.]

? See the opinions of the Judges in the Banbury Peerage case, in Nicholas
PART IV.] BASTARDY. 159

for intercourse, this merely strengthens the presumption of
legitimacy; but it may still be rebutted by opposing proof.’
_And if they have cohabited together, yet this does not ex-
clude evidence, that the husband was physically incapable of
being the father? But if the child was begotten during a
separation of the husband and wife a mensé et thoro by a
decree, it will be presumed illegitimate ; it being presumed,

 

on Adulterine Bastardy, pp. 183, 184; and of Ld. Redesdale and Ld. Ellen-
borough, Id. pp. 458, 488; Morris v. Davies, 3 C. & P. 427; 5 C. & Fin. 163;
Rex v. Luffe, 8 East, 193; Goodright v. Saul, 4 T. R. 356; Pendrel v. Pen-
drel, 2 Stra. 924; Stegall v. Stegall, 2 Brock, 256; Head v. Head, 1 Turn.
& Russ. 138; 1 Sim. & Stu. 150; Cope v. Cope, 5 C. & P. 604; 1 M.& Rob.
269; [Wright v. Hicks, 15 Geo. 160; 12 Ib. 155.] The presumption men-
tioned in the text, is not to be rebutted by circumstances which only create
doubt and suspicion; but it may be wholly removed by showing that the
husband was — 1st, impotent; 2dly, constantly absent, so as to have no inter-
course or communication of any kind with the mother; 3dly, absent during
the entire period in which the child must, in the course of nature, have
been begotten; 4thly, present, but under such circumstances as to afford
clear and satisfactory proof that there was no sexual intercourse. Such evi-
dence as this puts an end to the question, and establishes the illegitimacy of
the child of a married woman.

It is, however, very difficult to conclude against the legitimacy in cases
where there is no impotency, and where some society or communication is
continued between the husband and wife, during the time in question, so as
to have afforded opportunities for sexual intercourse. If such opportunities
have occurred, no evidence can be admitted to show that any man, other
than the husband, may have been the father of the wife’s child, whatever
probabilities may exist that it was the child of another man. Throughout
the investigation, the presumption in favor of legitimacy is to have its weight
and influence, and the evidence against it ought to be strong, distinct, satis-
factory, and conclusive. Hargrave v. Hargrave, 9 Beay. 552. This case is
valuable for the observations it contains on the nature and extent of the
proof necessary to establish a case of adulterine bastardy, and the kind of
evidence which is admissible in such cases. [Hemmenway v. Towner, 1
Allen, 209; Phillips v. Allen, 2 Allen, 453; Doherty v. Clark, 3 Allen, 151.]

1 Ibid. See also Commonwealth v. Striker, 1 Browne, App. p. xlvii; 3
Hawks, 63; 1 Ashmead, 269.

2 Per Ld. Ellenborough in Rex v. Luffe, 8 East, 205, 206; Foxcroft’s case,
Id. 200, n. 205. This case, however, is more fully stated and explained in
Nicholas on Adulterine Bastardy, p. 557-564. In case of access of the hus-
band, nothing short of physical impotency on his part will serve to convict
a third person of the paternity of the offspring. Commonwealth v. Shep-
herd, 6 Binn. 283.
160 LAW OF EVIDENCE. [PART IV.

until the contrary is shown, that the sentence of separation
was obeyed. But no such presumption is made, upon a vol-
untary separation."

§ 151. The husband and wife are alike incompetent wit-
nesses, to prove the fact of non-aécess while they lived to-
gether. But they are competent to testify, in cases between
third parties, as to the time of their own marriage, the time
of the child’s birth, the fact of access, and any other inde-
pendent facts affecting the question of legitimacy” The
husband’s declarations, however, that the child is not his, are
not sufficient to establish its illegitimacy, though it were
born only three months after marriage, and thereupon he and
his wife had separated, by mutual consent.

§ 152. In regard to the period of gestation, no precise time
is referred to, as a rule of law, though the term of two hun-
dred and eighty days, or forty weeks, being nine calendar
months and one week, is recognized as the usual period.
But the birth of a child being liable to be accelerated or de-
layed by circumstances, the question is purely a matter of
fact, to be decided upon all the evidence, both physical’ and
moral, in the particular case.*

§ 153. Bastardy may also be proved by showing, that the
party was the issue of a marriage absolutely void ; as, if the
husband or wife were already married to another person, who

 

1 St. George’s v. St. Margaret’s Parish, 1 Salk. 123; Bull. N. P. 112.

2 Ante, Vol. 1, §§ 28, 344; Standen v. Standen, Peake’s Cas. 32; Rex v.
Bramley, 6 T. R. 330; -Goodright v. Moss, Cowp. 591; [Parker v. Way,
15 N. H. 45.]

3 Bowles v. Bingham, 2 Munf. 442; 3 Munf. 599, 8.C. [General repu-
tation in the family is competent evidence in a case involving legitimacy ;
but common report of the neighborhood is notcompetent. Wright v. Hicks,
15 Geo. 160.]

4 See 1 Beck’s Med. Jurisp. ch. 9; Hargrave & Butler's note (2), to Co.
Lit. 123 b; 4 Law Mag. 25-49; Nicholas on Adu!terine Bastardy, pp. 212,
213; The Banbury Peerage case, Id. 291-554; The Gardner Peerage case,
Id. 209; [Phillips v. Allen, 2 Allen, 453.]
PART IV.] BASTARDY. 161

was alive at the time of the second marriage. So, by show-
ing that the child was begotten after a decree of divorce a
vinculo matrimonii. But if the marriage were only voidable,
and not ipso facto void, the issue are deemed legitimate, un-
less the marriage was avoided by the parties themselves, in
the lifetime of both. After the lapse of thirty years, and

after the death of all the parties, legitimacy will be presumed
on slight proof? ,

 

1 Co. Lit. 33a; 1 Bl. Comm. 424.
2 Johnson v. Johnson, 1 Desaus. 595.

14*
162 LAW OF EVIDENCE. [PART Iv.

BILLS OF EXCHANGE AND PROMIS,
SORY NOTES.

§ 153 a. In treating this subject, the rules of the common
law merchant, recognized in the Courts of England and the
United States of America, will alone be stated. But it is to
be remembered, that as between the holder of a bill of ex-
change, and the drawer or indorser, the le loci contractis of
the drawer and of the indorser, and not of the acceptor,
governs the liabilities of the drawer and of the indorser,
respectively. Thus, A drew a bill in favor of B, (both being
residents of Demarara,) upon C, resident.in Scotland, who
accepted it, making it payable in London; and B indorsed
it to D, who afterwards became bankrupt. When C’s ac-
ceptance became due, he held a bill of exchange, accepted
by D. An action being brought in Demarara, by D’s as-
signees, against A and B upon the bill, it was held, that
the Roman-Dutch law, prevalent in Denarata, and not the
law of England, must govern the case; and that according
to that law, the defendants were at liberty to plead D’s bill
as a compensation, pro tanto, of the billin suit

§ 154. As the acceptor of a bill of exchange, and the maker
of a promissory note, stand in the same relation to the holder,
the note being of the nature of a bill drawn by a man on
himself, and accepted at the time of drawing, the rules of
evidence are, in both cases, the same. The liabilities of the
parties to the instruments are of three general classes :—
(1.) Primary and absolute liability; such as that of the
acceptor of a bill or maker of a note, to the payee, indorsee,
and bearer ;— (2.) Secondary and conditional liability ; such
as that of the drawer of a bill, to the payee or indorsee, and

 

1 Allen v. Kemble, 13 Jur. 287, Priv. Coun.
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NoTES. 163

of the indorser to the indorsee;— (3.) Collateral and con-
tingent liability; such as that of the acceptor to the drawer
or indorser; and of the drawer to the acceptor. And, ac-
cordingly, the action upon a bill or note, will be brought,
either, (1.) by the payee or bearer, against the acceptor or
maker; or (2.) by the indorsee against the acceptor or
maker ; or (3.) by the payee, against the drawer of a bill;
or (4.) by the indorsee, against the drawer of a bill, or against
the indorser of a bill or note; or.(5.) by the drawer or in-
dorser of a bill against the acceptor; or (6.) by the acceptor,
against the drawer.

§ 155. In these forms of remedy, the material allegations
on the part of the plaintiff involve four principal points,
which, if not judicially admitted, he must prove; namely,
first, the existence of the insteelinenk, as described in the dec-
laration ;— secondly, how the defendant became party to it,
and his subsequent contract ;— thirdly, the mode by which
the plaintiff derived his interest in and right of action upon
the instrument;— and fourthly, the breach of the contract
by the defendant. The plaintiff will not be holden to prove
a consideration, unless in special cases, where his own title
to the bill is impeached, as will be shown hereafter. In
treating this subject, therefore, it is proposed to consider
these four principal points, in their order.}

 

1In this order, that of Mr. Chitty has been followed; whose treatise on
Bills, chap. 5, (9th edit.) and the treatise of Mr..Justice Story on Bills, have
been freely resorted to, throughout this Title.

The usual declarations on bills and notes are in the following forms, accord-
ing to the present practice in England, and in most of the United States,
where the Common-Law remedies are pursued.

(1.) Payee v. Acceptor of a foreign bill. “ For that one E. F. at
in the kingdom (or State) of on made his bill of exchange in writ-
ing directed to the said [defendant] at ——, and thereby required the said
[defendant] in —— days [or, months, &c.] after sight, [or, date] of that his
first of exchange, the second and third of the same tenor and date not paid,
to pay to the plaintiff [here insert the sum as expressed in the bill ; and if
the currency mentioned in the bill is one which has not been recognized, and its
value not established by statute, the value in the national currency should be

 

 

 

 

 
164 LAW OF EVIDENCE. [PART Iv.

§ 156. And rirst, as to the existence of the instrument, as
described in the declaration. Ordinarily the bill must be pro-

 

 

 

averred,] and the said [defendant] on accepted the said bill, and
promised the plaintiff to pay the same, according to the tenor and effect
thereof and of his said acceptance. Yet,” &c.

In this case, the proposition of fact, to be maintained by the plaintiff, in-
volves, first, the existence of such a bill as he describes, and secondly, that
the defendant accepted it as alleged.

(2.) Payee v. Maker, of a negotiable promissory note. ‘ For that the said
(defendant) on by his promissory note in writing, for value received,
promised the plaintiff to pay him or his order dollars in days
[or, months, &c.] after the date thereof. Yet,” &c.

Here the plaintiff’s case is made out by the production and proof of the
note.

(3.) Indorsee v. Acceptor, of a foreign bill. ‘ For that one E. F. at
in the kingdom, &c. on made his bill of exchange in writing, and direct-
ed the same to the said (defendant) at and thereby required the said
defendant in days [or, months, &c.] after sight [or, daie] of that, his first
of exchange, the second and third of the said tenor and date not paid, to pay
to one G. H. or his order [as in No. 1] and the said [defendant] then
accepted the said bill; and the said G. H. then indorsed the same to the
plaintiff; [or, indorsed the same one to J. K., and the said J. K. then indorsed

" the same to the plaintiff:] of all which the said (defendant) then had notice,
and in consideration thereof then promised the plaintiff to pay him the
amount of said bill, according to the tenor and effect thereof and of his said .
acceptance. Yet,” &c.

In this action the plaintiff’s case is made out by proof of the acceptance,
and of the indorsement; the acceptance being an admission that the bill was
duly drawn.

(4.) Indorsee v. Maker, of a promissory note. “ For that the said (de-
Jendant) on by his promissory note in writing, for value received, prom-
ised one E. F., to pay him or his order in days [or, months, &c.]
from said date; and the said KH. F. then indorsed the said note to the plain-
tiff; of which the said [defendant] then had notice, and in consideration
thereof then promised the plaintiff to pay him the amount of said note ac-
cording to the tenor thereof. Yet,” &c.

Here the plaintiff’s case is made out by proof of the maker’s signature, and
of the indorsement.

(5.) Bearer v. Maker, of a promisory note. ‘For that the said (defend-
ant) on by his promissory note in writing, for value received, promised
one E. F. to pay him or the bearer of said note in days [or,
months, &c.] from said date; and the said E. F. then assigned and delivered
the said note to the plaintiff, who then became and is the lawful owner and
bearer thereof; of which the said (defendant) then had notice, and in consid-

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 165

duced at the trial, in all the parts or sets in which it was
drawn.) [If the bill or other negotiable security be lost, there

 

eration thereof then promised the plaintiff to pay-him the amount of said
note according to the tenor thereof. Yet,” &c.

This declaration is proved by production of note, and seat of its exe-
cution by the defendant.

(6.) Payee v. Drawer, of a foreign bill, on non-acceptance. “ For that
the said [defendant] at —— on made his bill of exchange in writing,
and directed the same to one E. F. at —— in the kingdom of ——, and
thereby required the said E. F. in days [or, months, &c.] after sight
[or, date] of that his: first of exchange, the second and third of the same
tenor and date not paid, to pay to the plaintiff —— [as in No.1]; and the
said bill, on —— at said —— was presented to the said E. F. for acceptance, |
and he refused to accept the same; of all which the said [defendant] on
had due notice, and thereby became liable to pay to the plaintiff the amount
of said bill on demand, and in consideration thereof promised the plaintiff to
pay him the same accordingly. Yet,” &c.

Here, the plaintiff must prove, if traversed, the drawing of the bill, its
presentment to the drawee for acceptance, and his refusal to accept it, and
notice thereof to the defendant ; together with the protest, it being a foreign
bill. See Salomons v. Staveley, 3 Doug. 298.

(7.) Indorsee v. Drawer, of a foreign bill, on non-acceptance. “ For that

 

 

 

 

 

the said [defendant] at on made his bill of exchange in writing,
and directed the same to one E. F. at —— in'the kingdom of ——, and
thereby required the said E. F. in —— dayg [or, months, &c.] after sight

[or, date] of that his first of exchange, the second and third of the same
tenor and date not paid, to pay to one G. H. or his order [as in No. 1]
and the said G. H. then indorsed the same to , [as in No. 3] and the
said bill, on at said was presented to the said E. F. for acceptance,
and he refused to accept the same; of all which the said [defendant] on
- had due notice, and thereby became liable to pay to the plaintiff the
amount of said bill on demand, and in consideration thereof promised the
plaintiff to pay him the same accordingly. Yet,” &c.

A traverse of this declaration puts the plaintiff to prove the drawing of
the bill,— the payee’s indorsement, and all the subsequent indorsements
declared upon, — presentment to the drawee, — his default, — and notice
to the defendant of the dishonor of the bill; together with the protest, as
before.

(8.) Indorseé v. Indorser, being payee of a foreign bill, on non-acceptance. »
“For that one E. F. at on made his bill of exchange, and directed
the same to one G. H. at in the kingdom of , and thereby required
the said G. H. in days [or, months,] after sight [or, date] of that his
first of exchange, the second and third of the same tenor and date not paid,

 

 

 

 

 

 

 

 

 

 

12 Stark. Ev. 203; Chitty & Hulme on Bills, p. 616.
165 LAW OF EVIDENCE. [PART Lv.

can be no remedy upon it at law, unless it was in such a
state, when lost, that no person but the plaintiff could have

 

to pay to the said [defendant] or his order, [here describe the bill as in
No. 1] and the said [defendant] then indorsed the same [as in No. 3];
and the said bill on at said was presented to the said G. H. for
acceptance, and he refused to accept the same; of all which the said [de-
JSendant] on had due notice, and thereby became liable to pay to the
plaintiff the amount of said bill on demand, and in consideration thereof
promised the plaintiff to pay him the same accordingly. Yet,” &c.

The proof of this declaration is the same as in the preceding case.

(9.) Drawer v. Acceptor. ‘‘ For that the plaintiff on made his bill of
exchange in writing, and directed the same to said [defendant] and thereby
required him, in days [or, months, &c.] after sight [or, date] of that his
first of exchange, the second and third of the same tenor and date not paid,
to pay to one E. F. or his order [as in No.1] and delivered the same
to the said E. F., and the said [defendant] then accepted the same, and
promised the plaintiff to pay the same, according to the tenor and effect
thereof, and of his said acceptance; yet he did not pay the amount thereof,
although the said bill was presented to him on the day when it became due,
and thereupon the same was then and there returned to the plaintiff, of
which the said [defendant] had notice.”

In this case, the plaintiff may be required to prove the acceptance of the
bill by the defendant, —its presentment for payment, and his refusal, — pay-
ment of the bill by the plaintiff, — and that the defendant had effects of the
plaintiff in his hands; of which, however, the acceptance of the bill is prima
facie evidence. It is not necessary for the plaintiff to make out a title to the
bill under the payee. Kingman v, Hotaling, 25 Wend. 423.

(10.) Indorser v. Acceptor. In this case, the plaintiff may declare spe-
cially, as in the preceding case, mutatis mutandis ; but the more usual course is
to declare upon his original relation of payee or indorsee, as in Nos. 1 and 3.

(11.), Acceptor v. Drawer, of an accommodation-bill. “For that the said
[defendant] on in consideration that the plaintiff, at the request of the
said [defendant] and for his accommodation, had then accepted a certain bill
of exchange of that date drawn by the said [defendant] upon the plaintiff, for
the sum of payable to one E. F. or his order in days [or, months,
&c.] after sight [or, the date] of said bill, promised the plaintiff to furnish
him with money to pay said bill at the time when the same should become
payable. Yet the said [defendant] never did furnish the plaintiff with said
money, by reason whereof the plaintiff has been compelled with his own
money to pay the amount of said bill to the holder thereof, of which the said
defendant had due notice.”

In this case, the plaintiff must prove the drawing of the bill and its ac-
ceptance; he must rebut the presumption that he had effects of the drawer
in his hands, which results from his acceptance, by some evidence to the

 

 

 

 

 

 

 

 

 

 

 
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 167

acquired a right to sue thereon. Otherwise, the defendant
would be in danger of paying it twice, in case it has been
negotiated. It is also his voucher, to which he is entitled by
the usage of merchants, which requires its actual presenta-
tion for payment, and its delivery up when paid. Therefore,
wherever the danger of a double liability exists, as, in the
case of a bill or note, either actually negotiated in blank, or
payable to bearer, and lost or stolen, the claim of the indorsee
or former holder has been rejected.2~ And whether the loss
was before or after the bill fell due, is immaterial. On the
other hand, if there is no danger that the defendant will ever
again be liable on the bill or note, as, if it be proved to have
been actually destroyed, while in the plaintiff’s own hands,‘
or if the indorsement were specially restricted to the plaintiff.
only,> or if the instritment was not indorsed,’ or has been

 

contrary ; and he must prOve that he has paid the bill. This last fact is not
established by production of the bill without proof that it has been put into
circulation since the acceptance ; nor will a receipt of payment on the back
of the bill suffice, without showing that it was signed by some person entitled
to demand payment. Pfiel v. Vanbatenburg, 2 Camp. 439.

It is to be observed, that, where, by the course of practice, the precise
time of filing the declaration does not judicially appear, it may be necessary,
and is certainly expedient, toinsert an averment that the time of payment
of the bill or note is elapsed. But where the declaration is required to be
inserted in the writ, or filed at the time of commencing the action, as is the
case in several of the United States, this averment is unnecessary.

1 Pierson v. Hutchinson, 2 Campb. 211; Hansard v. Robinson, 7 B. & C.
90; 9D. & R. 860; Ry. & M. 404, n.; Poole v. Smith, Holt’s Cas. 144;
Rowley v. Ball, 8 Cowen, 303; Story on Bills, §§ 448, 449; Ramuz ».
Crowe, 11 Jur. 715; 1 Exch. R. 167; in which the cases are examined,
Hansard y. Robinson confirmed, and the question put at rest.

2 Davis v. Dodd, 4 Taunt. 602; Poole v. Smith, Holt’s Cas. 144; Rowley
v. Ball, 3 Cowen, 303; Mayor v. Johnson, 3 Campb. 324 ; Bullet v. Bank of
Pennsylvania, 4 Wash. C. C. R. 172; Champion v. Terry, 3 B. & B. 295.

3 Ibid.; Kirby v. Sisson, 2 Wend. 550. :

4 Pierson v. Hutchinson, 2 Campb. 211; Swift v. Stevens, 8 Conn. 431;
Anderson v. Robson, 2 Bay, R. 495; Rowley »v. Ball, 3 Cow. 303. The de-
struction of the bill may be inferred from circumstances. Pintard v. Tack-
ington, 10 Johns. 104; Peabody v. Denton, 2 Gal. 351; Hinsdale v. Bank of
Orange, 6 Wend. 378, 379.

5 Long v. Bailie, 2 Campb. 214; Ex parte Greenway, 6 Ves. 812.

6 Rolt v. Watson, 4 Bing. 273; 12 Moore, 510, 8. C.
a

168 LAW OF EVIDENCE. [PART IV.

given up by mistake,! the plaintiff has been permitted to
recover, upon the usual secondary evidence. So, if the bill
was lost after it had been produced in Court, and used as evi-
dence in another action.2? By cutting a bill, or a bank-note,
into two parts, as is often done for safety of transmission by
post, its negotiability, while the parts are separate, is de-
stroyed; in which case, the holder of one of the parts, on
proof of ownership of the whole, has been held entitled to
recover If the loss of a promissory note is proved, the plain-
tiff, if he is the payee, may recover, unless it is affirmatively
proved to have been negotiable; for, in the absence of such
proof, the Court will not presume that it was negotiable.

 

1 Eagle Bank v. Smith, 5 Conn. 71.

2 Renner v. Bank of Columbia, 9 Wheat. 396. This may have been
decided upon the ground that the loss was by the officers of the Court, while
the document was in the custody of the law. ‘The same rule has been
applied, where the bill has been used before commissioners in bankruptcy.
Poorley v. Millard, 1 C. & J. 411; 1 Tyrwh. 331, S.C. In the case of a
lost bill, the general and appropriate remedy is in Equity, upon the offer of
a bond of indemnity. 1 Story on Eq. Jurisp. §§ 81, 82; Ex parte Green-
way, 6 Ves. 812; Pierson v. Hutchinson, 2 Campb. 211; Mossop v. Eadon,
16 Ves. 430; Cockell v. Bridgman, 4 Beav. 499. In England, however, by
Stat. 9 & 10 W. 4, c. 17, § 3, if any inland bill be lost or miscarried within
the time limited for payment, the drawee is bound to give another of the
same tenor to the holder, who, if required, must give security to indemnify
him in case the lost bill should be found. But in some cases, the Courts of
Law have sustained an action by the payee, for the original consideration,
where the note or bill was not received in extinguishment of the original
contract ; — Rolt y. Watson, 2 Bing. 278 ;— or, upon the ground that the
defendant, being the drawer of the bill, had prevented the indorsee from ob-
taining the money of the drawee, by refusing to enable him so to do. Murray-
v. Carrett, 3 Call, R. 373. And in other cases, the owner of a bill, lost be-
fore its maturity, has been permitted to recover at law, on giving the defend-
ant an indemnity; Miller »v. Webb, 8 Louis. R. 516; Lewis v. Peytarin, 4
Martin, 4, N. S.; — but if lost after it had become due, and had been pro-
tested, no indemnity was held requisite. Brent v. Erving, 3 Martin, 303,
N. 8.

3 Hinsdale v. Bank of Orange, 6 Wend. 378; Bullet ». Bank of Penn-
sylvania, 2 Wash. C. C. R. 172; Patton v. State Bank, 2 N. & McC. 464;
Bank of United States v. Sill, 5 Conn. 106; Farmers’ Bank v. Reynolds,
5 Rand. 186.

4 MeNair v. Gilbert, 3 Wend. 344; Pintard v. Tackington, 10 Johns. 104,
105. See further, Bayley on Bills, 413-418. In a suit by the payee against
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 169

§ 157, This amount of proof is incumbent on the plaintiff,
in order to recover his damages, whatever may be the point
in issue. But where the general issue is pleaded, the plaintiff
_ must also prove every other material averment in his dec-
laration. If the issue is upon a point specially pleaded, all
other averments are admitted, and the evidence is confined
to that point alone.

§ 158, After the note or bill is produced, the next step is
to prove the signature of the defendant, where, by the nature
of the action, or by the state of the pleadings, or the course
of the Court, this proof may be required If the signature
is not attested, the usual method of proof is by evidence of
the person’s handwriting, or, of his admission of the fact.
If it is attested by a subscribing witness, that witness must
be produced, if he is to be had, and is competent.2 Some
evidence has also been held requisite of the identity of the
party with the person whose signature is thus proved; but
slight evidence to this point will suffice If it is alleged in

 

the maker of a promissory note, if the note be so mutilated that the payee’s
name is illegible; the plaintiff must prove that the note was made to him,
and was in his possession at the commencement of the suit; and that it was
mutilated under circumstances not affecting its validity. Hatch v. Dickin-
son, 7 Blackf, 48.

1 See supra, § 16.

2 Where the plaintiff relies on the defendant’s verbal admission that he
made the note in question, the identity of the note referred to must be satis-
factorily established. Therefore, where the agent of the holder of a note,
payable to bearer, called on the defendant with the alleged note in-his
pocket, which he did not exhibit, but told him he had a note for that amount
against, him, and requested payment of it for the plaintiff; and the defendant
replied that he had given such a.note, and would pay it if the plaintiff would
make a small deduction, and indulge him as to time; it was held, that the
note declared on and produced at the trial was not sufficiently identified
with that to which the admission referred, and that the proof was insufficient.
Palmer v. Manning, 4 Denio, 131.

3 See ante, Vol. 1, § 569-574, where the proof of the execution of instru-
ments is more fully treated.

4 See ante, Vol. 1, § 575; Nelson v. Whittall,1 B. & Ald.19; Page v.
Mann, 1 M. & M. 79; Mead v. Young, 4 T. R. 28; Bulkeley v. Butler,

VOL. II. 15
e
170 LAW OF EVIDENCE. [PART IV.

the declaration, that the bill was drawn, or accepted, or that
the note was made by the party, “his own proper hand being
thereunto subscribed,” it has been thought, that this unneces-
sary allegation bound the plaintiff to precise proof, and that
if the signature appeared to have been made by another, by
procuration, it was a fatal variance But the weight of
later authority is otherwise; and accordingly it is now held,
that these words may be rejected as surplusage.? If the in-
strument was executed by an agent, his authority must be
proved, together with his handwriting ; and if he was author-
ized by deed, the deed must be produced, or its absence
legally accounted for, and its existence and contents shown
by secondary evidence? If the instrument is in the hands of
the adverse party, or his agent, notice must be given to the
party to produce it.4

§ 159. If there are several signatures, they must all be
proved; and an admission by one, will not, in general, bind

 

2 B. & C. 484; Chitty & Hulme on Bills, 641, 642, (9th edit.) Sometimes
identity of name will suffice. Roden v. Ryde, 4 Ad. & El. N. S. 630-
634.

1 2 Stark. Ev. 203; 2 Phil. Ev. 4.

2 This point was first raised before Ld. Ellenborough, in 1804, in Levey
v. Wilson, 5 Esp. 180, when he held it matter of substance, and nonsuited
the plaintiff for the variance. Afterwards, in 1809, in Jones v. Mars et al.
2 Campb. 305, which was against partners, as drawers of a bill, “their own
hands being thereto subscribed,” and the proof being, that the name of their
firm of “ Mars & Co,” was subscribed by one of them only, the same learned
Judge refused to nonsuit the plaintiff for that,cause. In the following year,
the original point being directly before him in Helmsley v. Loader, 2 Campb.
450, he said it would be too narrow a construction of the words “‘ own hands,”
to require that the name should be written by the party himself. And of
this opinion was Ld. Tenterden, who accordingly held the words mere sur-
plusage, in Booth v. Grove, 1 M. & Malk. 182; 3 CO. & P. 835, S.C. See
also Chitty & Hulme on Bills, pp. 570, 627, (9th edit.) If the party signed
by the initials only of his name, intending thereby to be bound, it is suffi-
cient. Palmer v. Stephens, 1 Denio, R. 471.

3 Johnson v. Mason, 1 Esp. 89. .

4 See ante, Vol. 1, § 560-563. Notice to the agentis unnecessary. Bur-
ton v. Payne, 2 C. & P. 520.
e@

PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 171

the others! But where the acceptors are partners, it will
suffice to prove the partnership, and the handwriting of the
partner who wrote the signature” If the signature is not
attested by a subscribing witness, the admission of the party
is sufieient proof of it; otherwise the subscribing witness
must be called;? but the admission of the party that the sig-
nature is his, if not solemnly made, does not estop him from
disproving it. Payment of money into Court, partial pay-
ments made out of Court, promises to pay, a request of for-
bearance, and for further time of payment, and a promise to
give a new security, have‘severally been deemed sufficient to
dispense with proof of the signature A promise by the
maker to pay a note to an indorsee, made after it fell due,
has been held an admission not only of his own signature,
but of all the indorsements, superseding the necessity of
further proof.®

§ 160. The bill or note produced, must conform in all re-
spects to the instrument described in the declaration; for
every part of a written contract is material to its identity,

 

1 See ante, Vol. 1, § 174; Gray v. Palmer, 1 Esp. 135; Sheriff v. Wilkes,
1 East, 48; Carvick v. Vickery, 2 Doug. 653, note.

2 See ante, Vol. 1,§ 177. As to admission by partners, see ante, Vol. 1,
§ 112, and note. In the modern English practice, under the issue of non
acceperunt, though it be shown, in defence, that the acceptance was given by
one partner in fraud of the firm, yet such proof does not require the plain-
tiff to show that he gave a consideration for the bill, unless the evidence of
the defendants affects him with knowledge of the fraud. Musgrave v. Drake,
5 Ad. & El. 185, N. S. In the American Courts, where the older rules of
practice are still observed, it is otherwise. See infra, § 172. A signature
by the names and surnames of the several members of the firm, is sufficient
to charge the partnership. Norton ». Seymour, 3 M. G. &. 8. 792. Blod-
gett v. Jackson, 40 N. H. 21.

3 See ante, Vol. 1, § 569-572.

4 Hall v. Huse, 10 Mass. 39; Salem Bank v: Gloucester Bank, 17 Mass.
1; Ante, Vol. 1, §§ 27, 186, 205, 572.

5 See ante, Vol. 1, § 205; Israel v. Benjamin, 3 Campb. 40; Bosanquet
v. Anderson, 6 Esp. 43; Helmsley v. Loader, 2 Campb. 450; Jones v. Mor-
gan, Id. 474.

6 Keplinger v. Griffith, 2 Gill & Johns. 296.
172 LAW OF EVIDENCE. [PART Iv.

and a variance herein will be fatal1 But where it is alleged
that the party on such a day made his promissory note, but
it is not alleged that the note bore daté on that or any other
day, this is not considered as giving a date to the note, so as
to cause a variance by proof of a note bearing date on a
different day If there be any alteration apparent on the
instrument, tending to render it suspected, the plaintiff must
be prepared with evidence to explain it? And if the plaintiff
sue as payee of a bill or note, which purports to be payable
to a person of a different name, this also may be explained
by evidence aliunde, if the record “contains the proper aver-
ments. So, if the drawer and drawee of a bill are of the
same name, and the record does not assert that they are two
persons, parol evidence is admissible that they are one and
the same person, and of course that the bill amounts, in effect,
to a mere promissory note.’ If the action is by the indorsee
against the indorser of a bill dishonored on presentment for
payment, the allegation of its acceptance is not descriptive of
the instrument, but is wholly immaterial, and therefore need
not be proved.6 And in an action against the acceptor, if his
acceptance be unnecessarily stated to have been made to
pay the bill at a particular place, and there is an averment
of presentment there, this averment also is immaterial, and

 

i

1 See Vol. 1, §$ 56, 61, 63, 64; and supra, §$ 11 8, 11 d, as to the law of
variance. A note made payable to the maker’s own order, and by him in-
dorsed in blank, will support a count on such a note as made payable to the
bearer. Hooper v. Williams, 12 Jur. 270; Masters v. Baretto, 8 M. G. & S.
438. But prior to its indorsement, it is not a promissory note, within the St.
3 & 4 Anne, ec. 9. Brown v. De Winton, 12 Jur. 678.

2 Smith e. Lord, 9 Jur. 450; 2 Dowl. & L, 579, 8. C.

3 See Vol. 1, § 564.

4 Willis v. Barret, 2 Stark. R. 29.

5 Roach v. Ostler, 1 Man. & Ry. 120. Ifthe declaration is on a bill of
exchange, as drawn by S. S. and made payable “to S. S. or order,” and
the bill produced in evidence reads, “ Pay to my order,” it is no variance.
Smith v. McClure, 5 East, 476; Bluett v. Middleton, 1 Dowl. & L. 376;
Masters v. Barrets, 2 C. & K. 715.

6 Tanner v. Bean, 4 B. & C. 812, overruling Jones v. Morgan, 2 Campb.
474, as to this point.
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 173

neednot be proved! If the currency mentioned in the bill is
foreign, and its equivalent value has not been established
and declared by-law, the value will of course be alleged in
the declaration, and must be proved, including the rate of
exchange when the bill became due; together with the dura-
tion of the usances, if any are stated in the bill.

§ 161. Seconpty, the plaintiff must show how the defendani
was a party to the bill or note, and the nature of his contract.
If the action is against the acceptor, the acceptance must be
proved. And an acceptance, where it is not otherwise qual-
ified or restrained by the local law, may be either verbal or
in writing ; or may be either by express words, or by reason-
able implication? By the French law, every acceptance
must be in writing. By the English law, the acceptance of
a foreign bill may be verbal or in writing; but that of an
inland bill must be only in writing, on the bill itself. In all
other cases an acceptance by letter or other writing, is good;
though it is usually made on the bill? If the acceptance is

 

1 Freeman v. Kennell, Chitty & Hulme on Bills, p. 616.

® Story on Bills, §§ 242, 243; [Barnet v. Smith, 10 Foster, 256.]

8 Story on Bills, § 242; Chitty & Hulme on Bills, p. 314-333, (9th ed.)
A promise to accept an existing bill, specifically described, is a good accept-
ance; Grant v. Hunt, 1 M. G. & S. 44; 10 Jur. 228; Story on Bills, § 244;
but whether a promise to accept a non-existing bill, to be drawn at a future
day, is a good acceptance, is a point not universally agreed. As between
the drawee and a third person, who has taken the bill upon the faith of the
promise to accept it, the doctrine was for a long time maintained in Eng-
land, that it amounted to an acceptance of the bill. But this doctrine has
recently been reéxamined and explicitly overruled, in The Bank of Ireland
v. Archer, 11 M. & W. 383. “ But the rule,” says Mr. Justice Story, “as
formerly held, always included'the qualification, that the. paper, containing
the promise, should describe the bill to be drawn, in terms not to be mis-
taken, so as to identify and distinguish it from all others; that the bill should
be drawn within a reasonable time after the paper was written; and it
should be received, by the person taking it, upon the faith of the promised
acceptance ; and, if either of these circumstances should fail, the promise
would not amount to an acceptance. Under these qualifications, the rule
seems to be firmly established in America upon the footing of the old author-
ities. But the rule is applicable only to the cases of bills payable on demand,
or at a fixed time after date, and not to bills payable at or after sight; for it

15 *
174 LAW OF EVIDENCE. [PART Lv.

by an agent, his authority, as we have seen in other gases,
must be shown! Where the action is against some of sev-
eral acceptors or makers, the others are competent witnesses
for the plaintiff, to prove the handwriting of the defendant.
So, if the action is against partners, after proof of the part-
nership, the admissions of one of the firm are good, against
all3 ‘A signature by the names and surnames of the respec-
tive partners is sufficient to charge the partnership; and it
seems that such signature made by one of the partners will
suffice.t If the bill is drawn payable after sight, it is in
general necessary to prove the precise time of acceptance ;
but if the acceptance is dated, this is sufficient evidence of
the time; and though the date is in a hand different from
that of the acceptor, it will be presumed to have been writ-
ten by his authority, by a clerk, according to the usual course
of business5, If the acceptance was by parol, the person
who heard it must be called; and if the answer relied on
-was given by a clerk, his authority to accept bills for his,
master must also be proved.§

 

is obvious, that, to constitute an acceptance in the latter cases, a presentment
is indispensable, since the time that the bill is to ran cannot otherwise be
ascertained.” Story on Bills, § 249. And see Chitty & Hulme on Bills,
pp. 284, 285-297; Ulster County Bank v. MacFarlan, 3 Hill, (N. ¥.) R. 432.

! Supra, § 59-68.

2 York v. Blott, 5 M. & S. 71; Chitty & Hulme on Bills, p. 627, (9th ed.)
See ante, Vol. 1, § 399; Poole v. Palmer, 9 M. & W. 71.

8 See ante, Vol. 1, §§ 172,174, 177.

4 Norton v. Seymour, 3 M. G. & Se. 792.

5 Glossop v. Jacob, 4 Campb. 227; 1 Stark. R. 69,8. C.; Chitty & Hulme
on Bills, p. 292, (9th ed.) An acceptance by the wife of the drawee, by
writing her own name on the bill, is sufficient to bind him as acceptor, if she
had authority to accept the bill. Lindus v. Bradwell, 17 Law Jour. 121; 9
Law Mag. N. S. 146; 12 Jur. 230; 5 M. G. & Sc. 583. The mere produc-
tion of a bill, with formal proof of the acceptor’s handwriting, is prima facie
evidence that the bill was accepted during its currency, and within a reason-
able time of its date, such being the regular course of business. The reason-
ableness of the time, depends on the relative places of abode of the parties
to the bill. Roberts v. Bethell, 14 Eng. Law & Eq. R. 218.

6 Sawyer v. Kitchen, 1 Esp. R. 209. Asto what conduct or words amount
to a verbal acceptance, see Chitty & Hulme on Bills, pp. 288, 289, (9th ed.) ;
Story on Bills, § 243-247. [Where a note, payable on time, is indorsed
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 175

§ 162. In an action against the drawer, maker, or indorser,
of a bill or note, the same proof of signature, and of agent’s
authority, is requisite, as in the case of an acceptor

§ 163. In the THIRD piace, the plaintiff must prove his in-
terest in the bill or note, or, his title to sue thereon. Where
the action is between the immediate parties to the contract,
as payee and maker of a note, or payee and acceptor of a
bill, the plaintiff, ordinarily, has only to produce the instru-
ment and prove the signature.2. But where the plaintiff was
not an original party to the contract, but has derived his title
by means of some intermediate transfer, the steps of this
transfer become, to some extent, material to be proved. The

 

and the indorsement is not dated, and there is no evidence to show when it
was made, the presumption is that-the transfer of the note was made at or
soon after its date. Balch v. Onion, 4 Cush. 559. In an action by the payee
of a negotiable note against two or more persons as joint promisors, where
one of the defendants’ names is on the fave of the note, and the names of the
others are on its back, without date and in blank, the legal presumption is
that all the names were signed at the same time. Benthall v. Judkins, 13
Met. 265. The legal presumption is that a note has been transferred in
the usual course of business, for a valuable consideration, and before it was
dishonored. Andrews v. Chadbourne, 19 Barb. (N. Y.) 147; Leland »v.
Farnham, 25 Vt. 553.)

1 As to the proof of handwriting, see ante, Vol. 1, § 576-581. As to proof
by. the subscribing witness, see ante, Vol. 1, § 569-575. And as to admis-
sions by the party, or by one of several parties, see ante, Vol. 1, § 27, 172-
205. [A Mutual Fire Insurance Company, in an action brought by them
against one of their members, to recover assessments on a deposit note, must
prove not only the actual assessments, but must produce proper evidence of
their act of incorporation and by-laws, and show that the assessments are
made in accordance therewith. Atlantic Mut. Fire Ins. Co. v. Fitzpatrick,
2 Gray, 279. And if the Mutual Insurance Company be a foreign one, it
must, in such an action, show affirmatively that the contract of insurance,
which is the consideration of the note, is a, valid contract according to the
Jaws of the State in which it is made. Jones v. Smith, 3 Gray, 501. But if
the action on such note is brought by the indorsee, and he is a bond fide
holder without notice, a compliance by the company with the requisitions
of law may be presumed, in the absence of evidence to the contrary. Ibid.
Williams v. Cheney, Ib. 215.]

_ 2 King v. Milson, 2 Campb. 5. See also Peacock v. Rhodes, 2 Doug.
633.
176 LAW OF EVIDENCE. [PART IV.

extent to which the proof must be carried, will generally de-
pend upon the extent of the allegations in the declaration.
Thus, if a note made payable to A. B. or bearer, is indorsed
in blank by the payee, and the holder, in an action against
the maker, declares upon the indorsement, he must prove it;
although the allegation of the indorsement was unnecessary ;
for he might have sued as bearer only, in which case the in-
dorsement needs not be proved.! If the name of the payee
in the bill or note was left blank, and the plaintiff has filled
it by inserting his own name, he must show either that he
was intended as the original payee, or that the bill came
regularly into his possession.? If there are several persons
of the same name with the payee, the possession of the bill
or note is primd facie evidence that the plaintiff was in-
tended; but if there be two, father and son, in the absence
of other proof, it will be presumed that the father was in-

 

1 Waynam v. Bend, 1 Campb. 170. And see ante, Vol.1,§ 60. If he
sues as bearer only, the indorsement need not be proved. Wilbour v. Tur-
ner, 5 Pick. 526. See also Blakely v. Grant, 6 Mass. 386. And possession
of a negotiated bill or note is prima facie evidence of title in the holder, on
proof of the indorsements. See Mohtam v. Mills, 1 Sandf. S. C. R. 37.
Every indorsement of a promissory note will be presumed to have been
made at the place of making the note, until the contrary appears. Duncan
v. Sparrow, 3 Rob. (Louis.) R. 167. [In an action on a note payable to a
person named, or bearer, when the plaintiff brings the note declared upon
in his hand and offers it in evidence, this is not only evidence that he is the
bearer, but also raises a presumption of fact that he is the owner; and this
will stand as proof of title until other evidence is produced to control it.
And where the note is payable to a*corporation, of which the plaintiff is the
general agent, and, as such, has (he custody of all their notes, this fact alone
is not sufficient to rebut the general presumption, that he is the owner. Pet-
tee v. Prout, 3 Gray, 502. Where a promissory note is indorsed in blank,
and the genuineness of the signature and indorsements is admitted, and the
note is produced by the plaintiff at the trial, it is no defence to an action
thereon to offer to show that the plaintiff never owned the note, nor had it
in his possession, nor employed counsel to prosecute the action, nor had any
interest in the suit. Way v. Richardson, Ib. 412.]

2 Crutchley ». Mann, 5 Taunt. 529; 1 Marsh.29,8.C. Where the payee.
indorsed the note, but did not deliver it, and after his death it was delivered
by the executor to the plaintiff, it was held that the plaintiff had no title to
sue on the note. Bromage v. Lloyd, 1 Exch. R. 32.
PART Iv.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 177

tended. And, where the bill or note is made payable toa
firm by the name of A. & Co., the payees, in a suit in their
own names, must prove that they were the persons who com-
posed the firm.?

§ 164. But though the plaintiff must furnish the proof of
his own title, yet this proof may consist of admissions by
the defendant, apparent upon the bill or note. For every
person giving currency to commercial paper, is understood
thereby to assert the genuineness of all such signatures, and
the regularity of all such previous transactions as he was
bound to know. Thus, the acceptor of a bill, after sight,
whether in general, or for honor, or supra protest, by the act
of acceptance, admits that the drawer’s signature is genuine,
that he had a right to draw, that he was of proper age, and
otherwise qualified to contract, and that he bears the charac-
ter, in which he assumes to draw, such as executor, partner,
and the like. But there is no implied admission, in such
case, of the genuineness of the signature of the payee, or of
any other indorser.2 So, also, the indorsement of a bill or

 

1 Sweeting v. Fowler, 1 Stark. R. 106; Stebbing v. Spicer, 8 M. G. & S.
827. Ante, Vol. 1, § 838, u. [In some States, if a person, not an indorsee,
places his name in blank on a note, before it is negotiated or passed, and so
before it has acquired the character of a contract, the holder may fill up the
blank so as to charge such indorsee as a joint and several promisor and
surety. The fact of intrusting such blank with another is evidence of an
authority to fill up something over it, and the actual authority to fill it up in
any particular form may be proved by evidence aliunde. Riley v. Gerrish,
9 Cush. 194; Union Bank of Weymouth & B. v. Willis, 8 Met. 504 ; Ben-
thall v. Judkins, 13 Met. 265; Mecorney v. Stanley, 8 Cush. 85; Bryant v.
Eastman, 7 Ib. 111; Howe v. Merrill, 5 Ib. 80; Story, Prom. Notes, § 59,
472-480; Lowell v. Gage, 38 Maine, 35; Sargent v. Robbins, 19 N. H. 572.]

2 Waters v. Paynter, Chitty & Hulme on Bills, 637, note (1,) (9th edit.)

3 Wilkinson v. Lutwidge, 1 Stra. 648; Smith v. Seare, Bull. N. P. :270;
Porthouse v. Parker, 1 Camipb. 82; Taylor v. Croker, 4 Esp. 187; Bass v.
Clive,4 M. & 8.13; Vere v. Lewis, 8 T. R. 182; Parminter v. Symons,
2 Bro. P. C. 182; 1 Wils. 185; Aspinal v. Wake, 10 Bing. 51; Story on
Bills, §§ 118, 262; Schultz v. Astley, 2 Bing, N. C. 544; Pitt v. Chappelow,
8 M. & W. 616; Braithewaite v. Gardiner, 10 Jur. 591; Halifax v. Lye, 18
Law Journ. 197, C. P.; Smith v. Marsack, 6 D. & L. 363 ; Bank of Com-
merce v. Union Bank, 3 Comst. 230,
178 LAW OF EVIDENCE. [PART Iv.

note, is an admission of the genuineness of the signature of
the drawer, or maker! And if the bill is drawn by procura-
tion, the acceptance admits the procuration.?

§ 165. These admissions, however, by the act of acceptance
or indorsement, are strictly limited to those things which
the party was bound to know. Therefore, though a bill is
drawn payable to the drawer’s own order, and is indorsed
with the same name, whether by procuration or not, yet the
acceptance is not in itself an admission of the indorsement,
but only of the drawing;* though probably the Jury would
be warranted in inferring the one, from the admitted genu-
ineness of the other. So, though the bill has been shown

 

1 Free v. Hawkins, Holt’s Cas. 550; Young v. Patterson, 11 Rob. (Louis.)
R. 7. [A person who procures notes to be discounted by a bank, impliedly
warrants the genuineness of the signatures of the makers and indorsers ;
and such implied contract is not a representation concerning the character,
credit, or ability of another, within the Statute of Frauds. Cabot Bank »v.
Morton, 4 Gray, 156; Markle v. Hatfield, 2 Johns. 455; Herrick v. Whit-
ney, 15 Ib. 240; Canal Bank v. Bank of Albany, 1 Hill, 287; Talbot v.
Bank of Rochester, Ib. 295. And if the person procuring the notes to be
discounted by a bank, says, when offering them for discount, they are good,
and in case of non-payment he will see them paid, this is no evidence of a
waiver by the bank of the implied warranty of the genuineness of the sig-
natures. Cabot Bank v. Morton, wbi supra.]

2 Robinson v. Yarrow, 7 Taunt. 455; Story on Bills, §§ 262, 263, 412, 451.

3 Robinson v. Yarrow, 7 Taunt. 455 ; Story on Bills, §§ 262, 263, 412.
451; Smith v. Chester,1 T. R. 654. But where the bill is made payable
to the drawer’s own order, and by him is- indorsed, the acceptance, though
it may not be an admission of the genuineness of his indorsement, (a dis-
tinction which Mr. Justice Story thought very nice and not very satisfactory,
see Story on Bills, § 412,) yet is an admission of his authority to transfer
the bill to the bond fide holder. Thus, where, in an action by the indorsee
against the acceptor of such a bill, it appeared upon demurrer, that the
drawer, at the time of drawing the bill, was an uncertificated bankrupt, and
so had no right to control the funds, yet it was held, that the defendant, by
the acceptance, had conclusively admitted his right so to do, and as against
the indorsee, was estopped to set up such a defence. Pitt v. Chappelow, 8
M. & W. 616; Braithwaite v. Gardiner, 10 Jur. 591. And see Story on
Bills, § 85, note.

4 See ante, Vol. 1, §§ 578, 581; Alport v. Meek, 4 C. & P. 267. In this
case, as it appeared, by the plaintiff’s own showing, that neither of the sig-
PART Iv.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 179

to the drawer, with the indorsement of the payee upon it,
and his objection to paying it was merely because it was
drawn without consideration, yet this will not dispense with
proof of the indorsement.!. But where there are successive
indorsements, which are all laid in the declaration, and are
therefore generally necessary to be proved, yet, if the de-
fendant apply to the holder for further time, and offer terms,
this is an admission of the plaintiff’s title, and a waiver of
proof of all the indorsements except the first So, if the
payee delivered it, with his name indorsed on it, to another,
the proof of this fact will dispense with direct proof of the
indorsement.t So, if the drawee, at the time of acceptance
of an indorsed bill, expressly promises to pay it, this has been
held an admission of the indorsements.®

§ 166. The plaintiff is not bound to allege, nor of course
to prove any indorsements but such as are necessary to convey
title to himself. All others, therefore, may be stricken out;
even after the bill has been read in evidence, and after an
objection has been taken on account of variance. And in
an action against a subsequent indorser, it is not necessary to
prove any indorsement prior to his own, even though alleged.’
If the action is against the drawer or acceptor, and the first

 

natures was in the handwriting of the nominal drawer, for the want of fur-
ther explanatory evidence, he was nonsuited. See also Jones v. Turnour,
4C. & P. 204.

1 Duncan v. Scott, 1 Campb. 101.

2 Chitty & Hulme on Bills, p. 642, (9th ed.); Anie, Vol: 1, § 60.

3 Bosanquet v. Anderson, 6 Esp. 43.

4 Glover v. Thompson, Ry. & M. 403. But where the acceptor negotiated
the bill with the drawer’s name indorsed, he was not allowed, as against the
indorsee, to plead that it was not ihdorsed by the-drawer to the plaintiff, in
addition to a plea denying the acceptance. Gilmore v. Hague, 4 Dowl. P.
C. 303.

5 Hankey v. Wilson, Sayer, R. 223. And see Sidford v. Chambers, 1
Stark. R. 326.

6 Mayer wv. Jadis, 1 M. & Rob. 247. And see Dollfus v. Frosch, 1 Denio,
R. 367.

7 Critchlow v. Parry, 2 Campb. 182; Lambert v. Pack, 1 Salk. 127;
Chaters v. Bell, 4 Esp. 210.
180 LAW OF EVIDENCE. [PART LV.

indorsement was in blank, it will be unnecessary to prove
any of the subsequent indorsements, though they were in
full; they may therefore be stricken out at the time of trial,
unless set out in the declaration; which, however, may in
that case be amended.! If the bill or note was made payable
to the order of a fictitious person, and the party sued knew
that fact when he became party to the bill or note, or before
he transferred it, this will dispense with proof of the hand-
writing of the fictitious indorser.2 It may here be added, that
where the indorser of a bill or note is not a party to the suit,
he is generally a competent witness to prove his own indorse-
ment ;? and, that the indorsement of an infant ;4 or, of a feme
covert,> she being the agent of her husband; or, of a trader,
after an act of bankruptcy,é if he received the value, are alike
sufficient to convey title to the indorsee.

§ 167. Jn an action against the drawer or acceptor of a bill
payable to the order of several partners, it is in general neces-
sary to prove the partnership and the handwriting of the

 

1 Walwyn v. St. Quintin, 1 B. & P. 658; 2 Esp. 515, 8. C.; Chaters v.
Bell, 4 Esp. 210; Smith v. Chester, 1 T. R. 654. If the note or bill, though
indorsed and transferred, gets back again into the hands of the payee, he is
prima facie the legal owner. Dugan & al. v. The United States, 3 Wheat.
172. The holder may derive title to himself from any preceding indorser,
striking out the intermediate indorsements. Emerson v. Cutts, 12 Mass.
78; Tyler v. Binney, 7 Mass. 479; Watervliet Bank v. White, 1 Denio,
608.

2 Minet v. Gibson, 8 T. R. 481; Bennett v. Farnell, 1 Campb. 180 c.;
Chitty & Hulme on Bills, pp. 157, 158, (9th edit.) ; Story on Bills, § 200;
Cooper v. Meyer, 10 B. & C. 468. [Where the payee of the note was the
“New England Steam and Gas Pipe Co.,” and there was no such company
then existing, but A was carrying on business under that name, A may
transfer the title to the note by an indorgement in his own name. | Bryant v.
Eastman, 7 Cush. 111.]

3 Richardson v. Allan, 2 Stark. R. 334; Ante, Vol. 1, §§ 190, 383, 385.

4 Taylor v. Croker, 4 Esp. 187; Nightingale v. Withington, 15 Mass. 273 ;
Jones v. Darch, 4 Price, 300.

5 Cotes v. Davis, 1 Campb. 485; Barlow v. Bishop, 1 East, 434; Miller v.
Delamater, 12 Wend. 433; Lord v. Hall, 8 M. G. & S. 627; [Stevens v.
Beals, 10 Cush. 291.]

6 Smith v. Pickering, 1 Peake’s Cas. 50.
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 181

partner or agent of the firm by whom it was indorsed! But
if the partnership has been dissolved, it is not necessary, in
an action upon a bill, drawn and indorsed by one partner in
the name of the firm, to prove, that the bill was drawn and
indorsed before the dissolution; for the bill will be presumed
to have been drawn on the day of its date, and the Jury will
be at liberty to infer, that the indorsement, if without date,
was made at the same time? If the plaintiffs sue as in-
dorsees of a bill indorsed in blank, they need not prove their
partnership, nor that the bill was indorsed or delivered to
them jointly ; for the indorsement in blank conveys a joint
right of action to as many as agree in suing on the bill.8
But if a bill or note is payable or indorsed specially to a firm,
by their partnership name, and they sue thereon, strict proof
must be made, that the firm consists of the persons who
sue.*

§ 168. The like effect is given to a blank indorsement in
other cases; for in pleading it is sufficient, prima facie, to
convey a title to the actual holder, and of course, nothing
more need be proved. Thus, where a promissory note in-
dorsed in blank was delivered to one to get it discounted,
and he shortly afterwards returned with the money, which he
paid over, this was held sufficient to entitle him as executor
to recover judgment upon the note as indorsed to his testa-

 

1 Chitty & Hulme on Bills, p. 37-61, 643, (9th edit.)

2 Anderson v. Weston, 5 Bing. N. C. 296. [Where one of two partners
files his individual petition for the benefit of the insolvent law, and after-
wards, but before the first publication of notice on said petition, the two
partners divide between themselves certain promissory notes, the property
of the partnership, and payable to the partnership firm, either partner, before
the dissolution of the firm by the publication of notice on the petition of the
individual partner, may indorse the partnership name on the notes which
he takes under said division. Mechanics’ Bank v. Hildreth, 9 Cush. 356.]

8 Ord v. Portal, 3 Campb. 239, per Ld. Ellenborough; Attwood v. Rat-
tenbury, 6 Moore, 579, per Parke, J.; Rordasnz v. Leach, 1 Stark. R. 446

43 Campb. 240, note; Chitty & Hulme on Bills, p. 644, (9th edit.) In
such case, the names of the partners may be suggested to the witness by
whom the partnership is proved. Ante, Vol. 1, § 435.

VOL. Il. 16
182 LAW OF EVIDENCE. [PART IV.

tor. But in an action by the executor of the payee, against
the acceptor, it is necessary to allege and prove, that the
acceptance was in the testator’s lifetime? If the note, after
being indorsed in blank, is delivered in pledge by the payee,
as collateral security for a debt, this will not prevent the
payee from suing upon it in his own name, or again trans-
ferring it, subject only to be defeated by the claim of the

pledgee.

§ 169. If the action is by the drawer against the acceptor
of a bill, which, having been dishonored, he has been obliged
to pay to the holder, and these facts are alleged in the decla-
ration, the plaintiff must prove the return of the bill, and the
payment by him; but it is not necessary to prove, that the
acceptor held funds of the drawer, this being admitted by the
acceptance. And if a prior indorser, who has been obliged
to pay a subsequent indorsee, sues the acceptor, it has been
held that he must prove such payment. But in all these
actions, founded on the return of a bill, if it is shown that
the instrument was once in circulation, it will be presumed
that it came back into the plaintiff’s hands by payment, in
the regular course, by which dishonored paper goes back to
the original parties.

§ 170. Where the action is by an accommodation acceptor
against the drawer, either for money paid, or specially for not
indemnifying the plaintiff, in addition to proof of the drawing
of the bill, and of the absence of consideration, the plaintiff
should prove payment of the bill by himself, or some special

’

 

1 Godson v. Richards, 6 C. & P. 188.

2 Anon. 12 Mod. 477, per Holt, C. i And see Sarell v. Wine, 3 East,
409.

3 Fisher v. Bradford, 7 Greenl. 28; Bowman v. Wood, 15 Mass. 534.

4 Chitty & Hulme on Bills, pp. 537, 647, (9th edit.) ; Vere v. Lewis,
8 T. BR. 182.

5 Mendez v. Carreroon, 1 Ld. Raym. 742.

6 Pfiel v. Vanbatenburg, 2 Campb. 439; Dugan v. The United States,
3 Wheat. 172; Baring v. Clark, 19 Pick. 220,
PART Iy.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 183

damage, or liability to costs, by reason of his acceptance.
But here, also, the mere production of the bill by the plain-
tiff is not sufficient proof that he has paid it, unless he
shows, that it was once in circulation after it was accepted.
And, generally, payment will not bé presumed, from a receipt
indorsed on the bill, unless it is shown to be in the handwrit-
ing of one entitled to demand payment.”

§ 171. In regard to the consideration, two things are to be
noted ; first, as to the parties between whom it may be im-
peached; and secondly, as to the burden of proof. And here
it is first to be observed, that the consideration of a bill or
note, as well as of any other unsealed instrument of contract,
is impeachable by the immediate or original parties ; between
whom, the general rule is, that the want of it may always
be set up by the defendant, in bar of the action. Thus, it
may be insisted on by the drawer against the payee; by the
payee against his indorsee; and by the acceptor against the
drawer. The same rule is applied to all persons standing
precisely in the situation of the original parties, and identi-
fied with them, in equity; such as, their agents; purchasers
of paper dishonored by being over-due; persons who have
given no value for the bill; purchasers with notice that the
instrument is void in the hands of the assignor,? whether
from fraud, or from want, failure, or illegality of considera-
tion. These parties are regarded as taking the bill or note,
subject to all the equities attaching to the particular bill in
the hands of the holder; but not to equities, which may
exist between the parties, arising from other transactions.‘

 

1 Chilton v. Whiffin e¢ al. 3 Wils, 18; Bullock v. Lloyd, 20. & P.119;'
Chitty & Hulme on Bills, p. 647, (9th edit.)

2 Pfiel v. Vanbatenburg, 2 Campb. 439; Chitty & Hulme on Bills, ui
supra. And see Scholey v. Walsby, 1 Peake’s Cas. 25; Phillips v. Warren,
14 M. & W. 379.

3 But if a promissory note or bill is available to the holder, and he transfers
it to another, the want of consideration cannot be set up against the latter,
though he had notice that it was given without consideration, before it came
to his hands. Dudley »v. Littlefield, 8 Shep. 418.

4 Story on Bills, § 187; Burrough v. Moss, 10 B. & C. 558, Hughes v.
184 LAW OF EVIDENCE. [PART IV.

But, on the other hand, no defect or infirmity of considera-
tion, either in the creation or in the transfer of a negotiable
security, can be set up against a mere stranger to the trans-
action, such as a bond fide holder of the bill or note, who re-
ceived it for a valuable consideration, at or before it became
due, and without notice of any infirmity therein. The same
rule will apply, though the present holder has such notice,
if he derives his title to the bill from a prior bond fide holder
for value. Every such holder of a negotiable instrument is
entitled to recover upon it, notwithstanding any defect of
title in the person from whom he derived it; and even
though he derived it from one who acquired it by fraud, or
theft, or robbery.!

§172. Secondly, as to the burden of proof, it is to be ob-
served, that bills of exchange enjoy the privilege, conceded to
no unsealed instruments not negotiable, of being presumed
to be founded upon a valid and valuable consideration.
‘Hence, between the original parties, and, a fortiori, between
others who became bond fide holders, it is wholly unnecessary
to establish, that the bill was given for such consideration ;
the burden of proof resting upon the other party to establish
the contrary, and to rebut the presumption of value, which the
law raises for the protection of all negotiable paper? The

 

Large, 2 Barr. 103. In the United States the defendant has in many in-
stances been allowed to claim a set-off in such cases, founded on other trans-
actions. See Bayley on Bills, p. 544-548, cases in Phillips & Sewall’s notes.
See infra, § 200. In an action by an indorsee against a remote indorser, it
is a good defence, that the defendant, at the time when he indorsed the
bill, was so intoxicated and under the influence of liquor, and thereby so
deprived of the use of his reason, as to be unable to understand the nature
or effect of the indorsement; provided the plaintiff, at the time of the in-
dorsement, was aware of his being in that state. Gore v. Gibson, 13 M. &
W. 623; 9 Jur. 140, 8. C. [Where a firm purchases for a good consider-
ation, and before maturity, a promissory note given to one of the partners
for his accommodation, the firm cannot recover thereon, as it is affected with
notice of the want of consideration. Quinn ». Fuller, 7 Cush. 224.]

1 Story on Bills, § 187-194; Chitty & Hulme on Bills, p. 68-81, (6th
edit.)

2 Story on Bills, § 178; Emery v. Estes, 1 Redingt. 155. [.A promissory
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 185

same principle applies to the consideration paid by each
successive holder of the bill. But even in an action by the
indorsee against an original party to a bill, if it be shown, on
the part of the defendant, that the bill was made under duress,
or, that he was defrauded of it, or, if a strong suspicion of
fraud be raised, the plaintiff will then be required to show
under what circumstances and for what value he became the
holder! It is, however, only in such cases, that this proof

 

note is given for “value received ;” this is signed by the maker, and is an
admission on his part that value has been received for it, which is a good
consideration. Its being produced by the holder, is proof that after being
signed it was delivered to the promisee, and is, therefore, evidence of a con-
tract, on good consideration, between promisor and promisee, under the
promisor’s hand. But as between the original parties, such proof is not con-
clusive. It is, therefore, prima facie evidence, that is, it is competent evi-
dence tending to prove a proposition of fact, and if not rebutted or controlled
by other evidence, will stand as sufficient proof of such proposition of fact.
If, then, on a trial of a suit on a note by the promisee against the promisor,
the signature is admitted or proved, and the plaintiff produces and reads his
note for. value received, he has ordinarily no occasion to go further. He has
the burden of proof to show consideration; but he sustains that burden by
his prima facie evidence, which, if not rebutted, stands as conclusive evi-
dence. Butin a suit between the original parties, the consideration may be
inquired into; and as the burden is on the plaintiff to prove a good consid-
eration, if the whole evidence offered on both sides leaves it in doubt whether
there was a good consideration or not, the plaintiff fails to make out his case.
In general, the proof of want, or failure, of consideration, must commence on
the part of the defendant after the production and proof of the note by the
plaintiff, not because the defendant has the burden, or the burden of proof
has shifted, but because the plaintiff has offered prima facie proof sufficient
to sustain the burden of proof on his part unless it is rebutted and controlled
by counter proof. Shaw, C.J., in Burnham v. Allen, 1 Gray, 500.] —

1 Chitty & Hulme on Bills, pp. 648, 649, (9th edit.); Duncan v. Scott,
1 Campb. 100; Rees v. Marq. of Headfort, 2 Campb. 574; Heydon v. Thomp-
son, 1 Ad. & El. 210; Whitaker v. Edmunds, 1 M. & Rob. 366, per Patte-
son, J.; 1 Ad. & El. 638, S. C.; Heath v. Sansom, 2 B. & Ad. 291, as lim-
ited and explained by Patteson, J., in 1 M. & Rob. 367, and by Tindal, C. J.,
in 1 Bing. N. C. 267; Munroe v. Cooper, 5 Pick. 412; Story on Bills, §§ 193,
194; Musgrave v. Drake, 5 Ad. & El. 185, N. S.; Small v. Smith, 1 Denio,
R. 583; Harvey v. Tower, 15 Jur. 544. [Posi, p. 689. The burden of
proving good faith is all the law imposes on him. Worrester County Bank
v. D. & M. Bank, 10 Cush. 491; recognized in Wyer v. D. & M. Bank, 11
Ib. 53; Goodman v. Harvey, 4 Adolph. & El. 876, and 6 Nev. & Man. 372;

16 *
186 LAW OF EVIDENCE. [PART Iv.

will be demanded of the holder ; it will not be required, where
the defendant shows nothing more than a mere absence or
want of consideration on his part.!. Nor will it suffice for the
acceptor to show, that the drawer procured all the indorse-
ments to be made without consideration, in order that the
action might be brought by any indorsee, under an agree-
ment between the plaintiff and the drawer, to share the
money when recovered ;* nor, that the bill was accepted in
order to raise money for his own use, of which the payee
had subsequently defrauded him?

§ 173. The burden of proof is somewhat affected by the
form of the issue. Thus, in an action by the drawer against
the acceptor of a bill, if the consideration of the acceptance
is impeached under the general issue, as is ordinarily the
course in the American Courts, the burden of proof is on the
acceptor. And so it is, where the plaintiff, in his replication,
merely alleges that there was a valid consideration for the
acceptance, without specifying what it was; or, where he
states the kind of consideration under a videlicet, so as not
to confine himself to precise proof of the allegation. But,
where he chooses specially to allege the sort of consideration
on which he relies, concluding with a verification, so that
the defendant has an opportunity to traverse it, and does so,
the burden of proof is on the plaintiff, precisely to maintain
his replication.’

 

Uther v. Rich, 10 Adolph. & El. 790; Arbouin v. Anderson, 1 Adolph. & El.
N. R. 504; Hall v. Featherstone, 3 Hurlstone & Norman, 284.

But the holder of a bank-bill, proved to have been stolen, is not bound to
show how he came by the bill, to enable him to recover upon it. The bur-
den of proof is upon the defendant to show that the holder took it under
such circumstances that he has no claim upon it. Wyer v. Dorchester & M.
Bank, 11 Cush. 53; Solomons v. The Bank of England, 13 East, 135, note;
King v. Milsom, 2 Campb. 5; De Ja Chaumette v. Bank of England, 2 Barn.
& Adolph. 385; Louisiana Bank v. Bank of U. S. 9 Martin, 398.]

1 Ibid.; Lowe v. Chifney, 1 Bing. N. C. 267; 1 Scott, 95, S. C.

2 Whitaker v. Edmunds, 1 M. & Rob. 367.

3 Jacob v. Hungate, 1 M. & Rob. 445. Sce further, Chitty & Hulme on
Bills, 649-651, (9th edit.)

4 Batley v. Catterall, 1 M. & Rob. 379, and note (a). See also Lacey u.
PART Iv.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 187

§ 174. In the Frourta piace, the plaintiff must show a
breach of contract, by the defendant. And here it is to be
observed, that the engagement of the defendant is either
direct and absolute, or conditional. In the former case, as,
in an action against the maker of a promissory note, or,
against the acceptor of a bill, upon a general acceptance to
pay the bill according to its tenor, it is not necessary for the
plaintiff to prove a presentment for payment, it being not
essential to his right to recover. Where the bill is drawn
generally, but the acceptance is made payable at a particular
place, it has been much questioned whether it was necessary
for the holder to prove a presentment for payment at the
place named in the acceptance, in order to show the accept-
or’s default. In England, it was formerly held, that, in such
case, a presentment at the place must be shown ;? but sub-
sequently, by statute,’ such acceptance has been declared to
be a general acceptance, unless restrictive words are added,
making the bill payable at that place alone. ~ But in the
Supreme Court of the United States, it is held,.that as be-
tween the holder and the acceptor, no demand at the place
named in the acceptance is necessary, to entitle the plaintiff
to recover; though the want of such demand may affect the
amount of damages and interest; but that to charge the
drawer or indorsers of the bill, a demand at the place, at the
maturity of the bill, is indispensable.*

§ 175. But in the latter case, as in actions against the
drawer or indorser of a bill, or the indorser of a note, the

 

Forrester, 2 C. M. & R. 59; Chitty & Hulme on Bills, pp. 648, 649, (9th
edit.) ; Ante, Vol. 1, §§ 58, 59, 60.

1 In Maine, if a promissory note is payable at a place certain upon demand,
or upon demand after a certain day, the plaintiff is not entitled to recover,
unless he proves a demand made at the place. Stat. 1846, ch. 218.

2 Rowe v. Young, 3B.&C.165. And see Picquet v. Curtis, 1 Sumn. 478.

31 & 2 Geo. 4, cap. 78.

4 Wallace v. McConnell, 13 Pet. R. 136; Story on Bills, § 239; 3 Kent,
Comm. 99, note, (5th ed.) And see infra, § 180, a, 6; [Dockray v. Dunn,
37 Maine, 442; Carter v. Smith, 9 Cush. 321; Nichols v. Pool, 2 Jones, Law,
(N. C.) 23.]
188 LAW OF EVIDENCE. [PART Iv.

undertaking of the defendant being conditional, namely, to
pay in case the party primarily liable does not, the default of
such party must be proved, or the proof be dispensed with
by the introduction of other evidence. The receiver of a bill
or note is understood thereby to contract with every other
party, who would be entitled to bring an action on paying it,
that he will present in proper time to the drawee for accept-
ance, when acceptance is necessary, and to the acceptor for
payment when the bill has arrived at its maturity and is pay-
| able; to allow no extra time for payment, to the acceptor ;
and to give notice in a reasonable time, and without delay,
to every such person, of a failure in the attempt to procure
a proper acceptance or payment. Any default or neglect in
any of these respects will discharge every such person from
responsibility on account of a non-acceptance of a non-pay-
ment; and will make it operate, generally, as a satisfaction
of any debt, demand, or value for which it was given.

§ 176. Thus, in an action by the payee of a bill, or the
indorsee of a bill or note, against the drawer or indorser, it
is necessary to prove a presentment to the drawee for pay-
ment. If the bill is payable at sight, or in so many days
after sight, or after demand, or upon any other contingency,
a presentment, in order to fix the period of payment, must
be made, and of course be proved. But if the bill is pay-
able on demand, or in so many days after date, or the like, it
need not be presented merely for acceptance; but if it is so
presented, and is not accepted, the holder must give notice
of the dishonor in the same manner as if the bill were pay-
able at sight? The presentment for acceptance must be
shown to have been made by the holder or his agent, if

 

1 Story on Bills, §§ 112, 227; Bayley on Bills, pp. 217, 286, (5th ed.) In
Texas, the liability of drawers and indorsers may be fixed without notice, by
the institution of proceedings, within a limited time, against the acceptor, if
the bill has been accepted, or against the drawer, if acceptance is refused.
Hartley’s Dig. Art. 2528-2531.

2 Story on Bills, §§ 112, 227, 228; Chitty & Hulme on Bills, pp. 653, 654,
(9th ed.)
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 189

acceptance was refused; but if the bill was accepted on pre-
sentment by a stranger, it is available to the holder. If it is
drawn on partners, a presentment to one of them is suffi-
cient; but if drawn on several persons not partners, it has
been said, that it should be presented to each ; but the better
opinion seems otherwise, for if one of the drawers should
refuse to accept, the holder would not be bound to take the
acceptance of the others alone! It is not necessary to prove
that the presentment was made by the person named in the
declaration, the material fact being the presentment alone,
by some proper person.2. Nor is it necessary for the plaintiff,
in an action against the indorser, for non-payment of an
accepted bill, to show any demand of or inquiry after the
drawer?

§177. Presentment of the bill for acceptance is not ex-
cused by the drawee’s death, bankruptcy, insolvency, or
absconding. If he is dead, it should be presented to his
personal representatives, if any, or at his last domicile; and
if he has absconded, it should be presented at his last domi-
cile or place of business.‘

§ 178. Whenever it is essential to prove a presentment for
acceptance on a demand of payment, it must appear to have
been made at the proper time. No drawee can be required
to accept a bill on any day which is set apart by the laws or
observances or usages of the country or place, for religious or
other purposes, and is not deemed a day for the transaction
of secular business; such as a Sunday, Christmas day, or a

 

1 Story on Bills, § 229; Chitty & Hulme on Bills, p. 272-274, (9th ed.)
[Where there are several makers of a promissory note, not partners, a
demand must be made upon all the makers. Union Bank of Weymouth v.
Willis, 8 Met. 504.]

2 Boehm v. Campbell, 1 Gow, R. 55; 8 Moore, 15 S. C.

3 Heylin v. Adamson, 2 Burr, 669; Bromley v. Frazier, 1 Stra. 441;
Chitty & Hulme on Bills, p. 653, (9th edit.)

4 Story on Bills, § 260; Chitty & Hulme on Bills, pp. 279, 280, (9th edit.) ;
Groton v. Dalheim, 6 Greenl. 476; Greely v. Hunt, 8 Shepl. 455. [Weems
v. Farmers’ Bank, 15 Md. 231.]

~
190 LAW OF EVIDENCE. [PART Iv.

day appointed by public authority for a solemn fast or thanks-
giving, or any other general holiday; or a Saturday, where
the drawee is a Jew.) And in all cases, the presentment
must have been made at a reasonable hour of the day. If
made at the place of business, it must be made within the
usual hours of business, or, at farthest, while some person is
there who has authority to receive and answer the present-
ment. If made at the dwelling-house of the drawee, it may
be at any’ seasonable hour while the family are up.’

§ 179. The presentment of a promissory note for payment
should be made at its maturity, and not before, nor generally
‘after3 But where the maker lived two hundred miles from
the holder, a demand made six days afterwards has been
held sufficient.t Ifthe note is payable at a certain day after
sight, the payment of interest, or of part of the principal, duly

 

1 Story on Bills, §§ 233, 340.

2 Story on Bills, § 236; Chitty & Hulme on Bills, pp. 454, 455, 654, (9th
edit.) ; Parker v. Gordon, 7 East, 885; Wilkins c. Jadis, 2 B. & Ad. 155,
188; Garnet v. Woodcock, 6 M. & 8. 44. [‘ No fixed rule can be estab-
lished, by which to determine the hour beyond which the demand of pay-
ment, when made at the maker’s residence, will be unreasonable and insuffi-
cient to charge an indorser. Generally, however, it should be made at such
an hour, that, having regard to the habits and usages of the community where
the maker resides, he may be reasonably expected to be in a condition to
attend to ordinary business. And whether the presentment is within a rea-
sonable time cannot be made to depend on the private and peculiar habits
of the maker of a note, not known to the holder; but it must be determined
by a consideration of the circumstances which, in ordinary cases, would ren-
der it seasonable or otherwise. Barclay v. Bailey, 2 Campb. 527; Triggs v.
Newnham, 10 Moore, 249; 1 Car. & P. 631; Cayuga Co. Bank v. Hunt, 2
Hill, CN. ¥.) 635.” By Bigelow, J., in Farnsworth v. Allen, 4 Gray, 454;
A promissory note dated at Boston, but expressing no place of payment, and
hicld in Boston by a bank for collection, falling due at the end of August,
was presented for payment at nine o’clock in the evening of the last day of
g.ce at the house of the maker, ten miles from Boston, after he and his
trmily -had retired for the night, and it was held a sufficient demand, to
cherge the indorser. Ib.]

3 Henry ». Jones, 8 Mass. 453; Farnum v. Fowle, 12 Mass. 88; Wood-
bridge v. Brigham, Id. 408; Barker v. Parker, 6 Pick. 80, 81.

4 Freeman v. Boynton, 7 Mass. 483.
PART Iv.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 191

indorsed thereon, is primd facie evidence that it was pre-
sented for sight before the time of such payment, and that
it became due on the day when the payment was made! If
it is payable on demand, or is indorsed after it is overdue,
payment should be demanded within a reasonable time, in
order to charge the indorser.2? A banker's check may be pre-
sented on the next day after the date, this being considered
a reasonable time

§ 180. It must also appear, that the presentment was made
at the propen place ; and this, in general, is the town or mu-
nicipality of the domicile of the drawee. If he dwells in one
place, and has his place of business in another, whether it be
in the same town, or in another town, thé bill may be pre-
sented for acceptance at either place, at the option of the
holder; and this, even though a particular place be desig-
nated as the place of payment! If the bill is addressed to
the drawee at a place where he never lived, or if he has
removed to another place, the presentment should be at the
place of his actual domicile, if, by diligent inquiries, it can be
ascertained ; and if it cannot be ascertained, or if the drawee
has absconded, the bill may be treated as dishonored.

 

1 Way v. Bassett, 5 Hare, 55.

2 Chitty & Hulme on Bills, p. 379-386, (9th edit.) ; Colt v. Barnard, 18
Pick. 260. Seven days after the date, has been held sufficient. Seaver v.
Lincoln, 21 Pick. 267; and eight months an unreasonable delay. Field v.
Nickerson, 12 Mass. 131; Thayer v. Brackett, 12 Mass. 450. See also Syl-
vester v. Crapo, 15 Pick. 92; Thompson v. Hale, 5 Pick. 259; Martin v.
Winslow, 2 Mason, 241. See infra, § 199, note, as to the time when a note
payable on demand is to be considered as dishonored.

3 Chitty & Hulme on Bills, p. 385, (9th edit.)

4 Story on Bills, § 236; Chitty & Hulme on Bills, pp. 365, 366, (9th
edit.) ; Supra, § 174.

5 Story on Bills, § 325. The place at which a promissory note is dated,
is prima facie evidence of the residence of the maker at that place; but it
is no indication of the place of payment, nor does it authorize a demand
there, for the purpose of charging an indorser. If the maker of a note has
absconded ; or, being a seaman and without a domicile in the State, is ab-
sent, on a voyage; and also, if he has no known residence or place of busi-
ness at which a demand can be made ; a presentment for payment is excused,
192 LAW OF EVIDENCE. [PART Lv.

§ 180 a. Where the bill or note is made payable at a par-
ticular place, as, at a bank, or a banker’s, the question,
whether a presentment for payment must be made at that
place, in order to entitle the holder to recover, has been held
diversely in England and in the United States. Ina recent
work of the highest merit, the law in the two countries is
thus stated: “ According to the commercial law of England,
if a promissory note is made payable at any particular place,
as, for example, at a bank, or a banker’s, a presentment
should be there made for payment.” Before the statute of

‘

and the indorser will be liable, on receiving notice of the facts constituting
the excuse. So, if the maker, after making the note, transfers his domicile
permanently to another State, the holder need not follow him, but a demand
at his former place of residence will suffice. If the note is made and dated
at one place, the maker having and continuing to have a known residence at
another, the demand must be made at the latter place, and not at the former.
Taylor v. Snyder, 3 Denio, 145. And see Gilmore v. Spies, 1 Barb. 158.
To enable the holder to charge an indorser, without a demand on the maker,
the facts, excusing the demand, must be distinctly proved. Taylor v. Snyder,
supra. [Where it appeared that the notary “ went to various places, making
diligent inquiry of divers persons, for the promisor, but could not find him,
nor any one knowing him, nor any one with funds for the payment of the
note, and thereupon left official notice of the default, addressed to the several
indorsers at their respective places of business ;” this showed that the notary
had not used such reasonable diligence to ascertain the residence of the
maker as would excuse the want of legal notice to him of the dishonor of the
note, it appearing that he knew the places of business of the indorsers, and
it not appearing that he inquired of them as to the residence of the maker.
Porter-v. Judson, 1 Gray, 175; Granite Bank v. Ayers, 16 Pick. 392. See
as to the effect of failure on the part of the notary to inquire of the other
parties to the note, (the maker and second indorser,) Peirce v. Pendar, 5
Met. 352; as to sufficiently diligent inquiry of parties and others, Phipps v.
Chase, 6 Met. 491; and as to the duty‘of the holder of a note to inform the
notary or bank officer, of whom to make inquiry, and where the persons to
be inquired of may be found, Wheeler v. Field, 6 Met. 290. Where a no-
tary certified that he went several times to the place of business of the ac-
ceptor, and found the doors closed, and no one there to answer his demand
for payment, he cannot be charged with neglect, for not presenting the bill
at the residence of the acceptor, in the same city. Wiseman v. Chiapella,
23 How. 368.]

1 Story on Promissory Notes, §§ 227, 228.

2 Story on Bills, § 239, and note ; Id. § 355 ; Chitty on Bills, ch. 7, pp. 321,
322, (8th ed.) ; Id. ch. 9, pp. 391, 892; Bayley on Bills, ch. 1, § 9, pp. 29,
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NoTES. 198

1 & 2 Geo. 4, ch. 78, a bill of exchange, as well as a promis-
sory note, payable at a bank or banker’s, was required to be
presented at the bank or banker’s for payment, before the
acceptor or maker was bound to pay the same That stat-
ute changed the antecedent responsibility of the acceptor of
a bill of exchange, by providing that an. acceptance, payable
at a banker’s or other specified place, without adding the
words, ‘and not otherwise or elsewhere,’ should be deemed a
general acceptance of the bill to all intents and purposes, so
that no presentment or demand of payment at such banker’s
or other specified place, was thereafter necessary to be made,
in order to charge the acceptor. But the statute did not
touch the rights of the drawers or indorsers of any such bill,
but left them to be governed by the antecedent general law.
Hence, so far as the drawer and indorsers are concerned, a
due presentment and demand of payment is still necessary to
be made at the banker’s, or other specified place, in order to
found any right of action against them.? The statute does
not comprehend promissory notes payable at a banker’s or
other specified place; and therefore it is indispensable, in
order to charge the maker or indorsers of a promissory note,
that a due presentment and demand of payment should be
made at the banker’s or other specified place. If a due pre-
sentment is not so made, the indorsers are discharged from
all liability The maker, indeed, is not so discharged; but

 

30, (5th ed.) ; Id. ch. 9, § 1, pp. 199, 200; Id. ch. 7, § 1, p. 219-222; 1
Bell, Comm. B. 3, ch. 2, § 4, pp. 412, 413, (5th ed.); Gibb v. Mather, 2
Cromp. & Jerv. 254; S. C. 8 Bing. R. 214.

1 Tbid.

2 Ibid. ; Chitty on Bills, ch. 4, p. 172-174, (8th ed.); Id. ch. 7, p. 321-
323; Id. ch. 9, pp. 391, 393, 396, 397; Bayley on Bills, ch. 1, § 9, p. 29, (5th
ed.); Id. ch. 6, § 1, p. 199-201; Gibb v. Mather, 2 Cromp. & Jerv. 254; S.
C. 8 Bing. R. 214; Fayle v. Bird, 6 Barn. & Cressw. 531; 3 Kent, Comm.
Lect. 44, p. 97, and note (¢), and Id. p. 99, note (6), (5th ed.); Story on
Bills, § 355; Thompson on Bills, ch. 6, § 2, p. 420-428, (2d ed.)

3 Gibb v. Mather, 2 Cromp. & Jerv. 254; S.C. 8 Bing: 214; Ambrose v.
Hopwood, 2 Taunt. R. 61. This whole subjent was very sachs discussed in
the House of Lords in the case of Rowe v. Young, 2 Brod. & Bing. R. 165;
S. C. 2 Bligh, R. 391. See, also, Gibb v. Mather, supra. in Indiana, the
English doctrine is adopted. Palmer v. Hughes, 4 Blackf. R 329.

4 Bayley on Bills, ch. 7,§ 1, p 219-222, (5th ed.) ; Chitty on Bills, ch. 9,

VOL. II. 17
194 LAW OF EVIDENCE. [PART Iv.

he is in no default, and is under no obligation to pay the
note until presentment and demand has been actually made
at the banker’s or other specified place ;1 and if he has suf-
fered any loss or injury by the want of a due presentment, to
the extent of the loss or injury he will be discharged as
against the holder.” ?

§ 180 6. “In America a doctrine somewhat different pre-
vails, if not universally, at least to a great extent. It was
probably in the first instance adopted from the supposed ten-
dency of the English authorities to the same result; and
there certainly was much conflict in the authorities, until the
doctrine was put at rest by the final decision in the House of
Lords, a decision which seems founded upon the most solid
principles, and to be supported by the most enlarged public
policy, as to the rights and duties of parties. The received
doctrine in America seems to be this, that as to the acceptor
of a bill of exchange, and the maker of a promissory note,
payable at a bank, or other specified place, the same rule
applies, that is, that no presentment or demand of payment
need be made at the specified place, on the day when the bill
or note becomes due, or afterwards in order to maintain a
suit against the acceptor, or maker; and of course, that there
need be no averment in the declaration in any suit brought
thereon, or any proof at the trial, of any such presentment or
demand. But that the omission or neglect is a matter of
defence on the part of the acceptor or maker. If the acceptor
or maker had funds at the appointed place, at the time, to
pay the bill or note, and it was not duly presented, he will,
in the suit, be exonerated, not, indeed, from the payment of

 

pp- 396, 397, (8th ed.) ; Sanderson v. Bowes, 14 East, 500; Roche v. Camp-
bell, 3 Campb. 247; Gibb v. Mather, 2 Cromp. & Jerv. 254; S.C. 8 Bing.
214; Dickinson v. Bowes, 16 East, 110; Howe v. Bowes, 16 East, 112; S.
C. in Error, 5 Taunt. 30; Trecothick v. Edwin, 1 Stark. R. 468; Emblem
v. Dartnell, 12 Mees. & Wels. 830; Vander Donckt v. Thelusson, 8 M. G. &
8. 812. :

1 Chitty on Bills, ch. 5, p. 174, (8th edit.) ; Turner v. Hayden, 4 Barn.
& Cressw. 1.

2 Rhodes v. Gent, 5 Barn. & Ald. 244; Turner v. Hayden, 4 Barn. &
*Cressw. 1.
PART IV.] BILLS OF EXCHANGE AND. PROMISSORY NOTES. 195

the principal sum, but from the payment of all damages and
costs in that suit. -If by such omission or neglect of present-
ment and demand, he has sustained any loss or injury, as if
the bill or note were payable at a bank, and the acceptor or
maker had funds there at the time, which have been lost by
the failure of the bank, then, and in such case, the acceptor
or maker will be exonerated from liability to the extent of
the loss or injury sustained.” 4

 

1 Story on Promissory Notes, §§ 227, 228; Wallace v. McConnell, 13 Pet.
36. “The ground,” says Mr. Justice Story, “upon which the American
doctrine is placed, is, that the acceptor or maker is the promissory debtor,
and the debt is not as to him discharged by the omission or neglect to demand
payment, when the debt became due, at the place where it was payable.
Assuming this to be true, it by no means follows, that the acceptor or maker
is in default, until a demand of payment has been made at the place of pay-
ment; for the terms of his contract import an express condition, that he will
pay upon due presentment, at that place, and not that he will pay upon
demand elsewhere ; and the omission or neglect of duty, on the part of the
holder, to make presentment at that place, ought not to change the nature or
character of the obligations of the acceptor or maker. Now, the right to
bring an action presupposes a default on the part of the acceptor or maker ;
and it may, after all, make a great difference to him, not only in point of
convenience, but in point of loss by exchange, as well as of expense, whether,
if he agrees to pay the money in Mobile, or in New Orleans, he may be re-
quired, without any default on his own part, notwithstanding he has funds
there, to pay the same money in New York or in Boston. He may well say :
Non in hee foedera veni.” Story on Promissory Notes, § 229 ; 3 Kent, Comm.
97, note (e); Id. 99, note (4). ‘The learned commentator,” he says,
“holds the English rule to be the true one, and adds: ‘This is the plain
sense of the contract, and the words “ accepted, payable at a given place,”
are equivalent to an exclusion of a demand elsewhere.’ Story on Bills,
§ 356. See also North Bank v. Abbot, 13 Pick. 465; Payson v. Whitcomb,
15 Pick. 212; Church v. Clark, 21 Pick. 310; Carley v. Vance, 17 Mass.
389; Ruggles v. Patten, 8 Mass. 480; Mellon v. Croghan, 15 Martin, 423;
Smith ». Robinson, 2 Miller, (Louis.) R. 405; Palmer v. Hughes, 1 Blackf.
328; Gale v. Kemper, 10 Louis. R. 208; Warren v. Allnut, 12 Louis. R.
454; Thompson v. Cook, 2 McLean, 125; Ogden v. Dobbin, 2 Hall, N. Y.
R. 112; Picquet v. Curtis, 1 Sumner, 478.” See also Story on Bills, p. 263,
note (2). In Maine, in an action upon a note payable on demand at a place
certain, or on demand at or after a specified time, at a place certain, the
plairitiff is required to prove a demand at the place, before suit. Stat. 1846,
ch. 218. In Georgia, it has been held, that in the case of bank-notes, made
payable at a place certain, the bank is entitled to a presentment at the place,
196 LAW OF EVIDENCE. [PART Iv.

§ 181. Where the bill is not made payable in so many days
after sight, it is sufficient to prove a presentment for payment
at the maturity of the bill, and a refusal of payment. And it
suffices to show a presentment for acceptance, and a xefusal
to accept at any time previous to the maturity of the bill; for
upon its dishonor, the drawer becomes liable immediately?
It also suffices to show, that the drawee refused to accept
according to the tenor of the bill, notwithstanding the de-
fendant should offer to prove, that the drawee offered a dif-
ferent acceptance, equally beneficial to the holder But the
plaintiff must, in all cases, show, that the refusal proceeded
from the drawee; a declaration by some unauthorized per-
son, that the bill would not be accepted, is not sufficient.®

§ 182. Presentment for payment, as well as notice of dis-
honor, may be proved by entries in the books of a deceased
notary, clerk, messenger of a bank, or other person, whose
duty or ordinary course of business it was to make such
entries.

 

before it is liable to a suit upon the notes; this case constituting an excep-
tion, on grounds of public policy and convenience, from the general rule in
regard to private bills and notes. Dougherty v. The Western Bank of
Georgia, 1 Am. Law Reg. 689.

1 Chitty & Hulme on Bills, p. 654, (9th edit.); Ballingalls v. Gloster,
3 East, 481. i :

2 Chitty & Hulme on Bills, pp. 654, 655, (9th edit.); Boehm v. Garcias,
1 Campb. 425, note.

3 Cheek v. Roper, 5 Esp. 175.

4 See ante, Vol. 1,§ 116. In New Jersey, the notary is bound to keep a
record of his acts, in regard to protected bills of exchange or promissory
notes; and in case of his death or absence in parts unknown, the record is
made competent evidence of the matters therein contained. Rev. Stat. 1846,
tit. 29, ch. 1, 8§ 7, 8, 9.

In Pennsylvania, the want of demand and notice is no defence, unless the
places of demand and of notice, or the names and residences of the parties
thereto, are distinctly set forth on the bill or note. And if such names and
places are not so set forth, the bills and notes are deemed payable and pro-
testable at the place where they are dated; or, if without place of date,
then at the place where they are deposited or held for collection ; and drafts
on third persons are deemed acceptable, payable, and protestable at the place
where they are addressed to the drawee; and, in all such cases, demand of
PART Iv.] BILLS OF EXCHANGE AND PROMISSORY NoTES. 197

§ 183. In an action against the drawer or indorser of a
foreign bill, (and even of an inland bill, if a protest is al-
leged,) the plaintiff must prove, beside the presentment and
notice of dishonor, a protest for non-acceptance, or non-pay-
ment.| The proper evidence of the protest is the production
of the notarial act itself;? and if this was made abroad, the
seal is a sufficient authentication of the act, without farther
proof;® but it is said, that if the protest was made within
the jurisdiction, it must be proved by the notary who mad:
it, and by the attesting witness, if any.

 

acceptance, protest, and notice of non-acceptance, may be made and given
before maturity of the bill; and demand of payment, protest, and notice of
non-payment, may be made and given at any time after maturity of the bill,
and before suit. Dunlop, Dig. ch. 894, § 7-9. [The protest of a promissory
note, duly authenticated by the signature and official seal of a notary-public,
and found among his papers after his death, is competent secondary evi-
dence of the acts of the notary stated therein, respecting presentment,
demand, and notice. Porter v. Judson, 1 Gray, 175. But such proof can-
not be made by the affidavit of an attorney-at-law, since deceased, it not
appearing that such acts were done in the discharge of a duty, and in the
regular course of business. Bradbury v. Bridges, 38 Maine, 346. ]

1 Story on Bills, §§ 273, 281; Chitty & Hulme on Bills, pp. 445, 655, (9th
edit.) Protest of an inland bill is not necessary. Id.; Young v. Bryan,
6 Wheat. 146. Nor is it necessary to serve a copy of the protest with the
notice of the dishonor of a bill. Cowperthwaite v. Sheffield, 1 Sandf. S. C,
R. 416.

2 Lenox v. Leverett, 10 Mass. i; Chitty & Hulme on Bills, pp. 445, 655,
(9th edit.)

3 Townsley v. Sumrall, 2 Peters, R. 170; Halliday v. McDougall, 20
Wend. 85; Grafton Bank » Moore, 14 N. Hamp. 142. The United States
are, in this respect, foreign to each other. Williams v. Putnam, 14 N. Hamp.
540.

4 Chesmer v. Noyes, 4 Campb. 129; Marin v. Palmer, 6 C.& P. 466. In
some of the United States, the certificate of the notary, under his hand and
official seal, is, by statute, made competent evidence, prima facie, of the
matters by him transacted, in relation to the presentment and dishonor of
the bill, and of notice thereof to the parties liable. LL. New York, 1833,
ch. 271, § 8; Smith v. McManus, 7 Yerg. 477; LL. Mississippi, 1833, ch.
70; 2 Kent, Comm. 93, note; Rev. LL. Maine, ch. 44,§ 12; Beckwith v.
The St. Croix Man. C6. 10 Shapl. 284. See also Clark v. Bigelow,4 Shepl.
246; Warren v. Warren, Id. 259; Connecticut Rev. Stat. 1849, tit. 1, § 128;-
Pern, Hartley, Dig. Art. 2532, Stat. March 20, 1848, § 5. [Although the

17*
198 LAW OF EVIDENCE. [PART Iv.

§ 184. But the want of protest is excused by proof, that the
defendant requested that, in case of the dishonor of the bill,
no protest should be made; or, that the defendant, being the
drawer, had no funds in the drawee’s hands, or had no right
to draw the bill; or, that the protest was prevented by inev-
itable casualty, or by superior force! So, if the defendant
has admitted his liability, by a partial payment, or a promise
to pay, a protest need not be proved?

§ 185. In regard to inland bills, a protest is not in general
necessary to be proved, unless it is made so by the local
e municipal law.’

§ 186. In an action against the drawer of a bill, or the
indorser of a bill or note, it is also necessary for the plaintiff
to prove, that the defendant had due notice of the dishonor
of the bill or note. To constitute a sufficient notice, it must
contain such a description of the bill or note as will serve to
identify it, to the understanding of the party addressed; and
must state in substance, or by natural implication, that it has
been presented for acceptance or payment, as the case may
be, and has been dishonored; and, where a protest is by
law or usage required, that it has been protested And if

 

statute of a State may make a notary’s certificate, as to demand and notice,
legal proof of the facts which it embraces in the Courts of that State, yet it
is not admissable in the Courts of another State, where its admission would
supersede its own rules of evidence. Kirtland v. Wanser, 2 Duer, N. Y.
278.]

1 Story on Bills, §§ 275, 280; Chitty & Hulme on Bills, p. 452.

2 Gibbon +. Coggon, 1 Campb. 188; Taylor v. Jones, Id. 105; Chitty
& Hulme on Bills, pp. 456, 655, (9th edit.) ; Campbell v. Webster, 9 Jur.
992.

3 Story on Bills, § 281.

4 See Story on Bills, §§ 301, 390; Story on Promissory Notes, § 848-354.
Notice to the indorser of a foreign bill, that the bill describing it, has been
protested for non-payment, and that the holder looks to him for payment
thereof, is sufficient notice of dishonor ;-the term protested, when thus used,
implying that payment had been demanded and refused. Spies v. Newbury,
2 Doug. (Mich.) R. 425. So, where the notice merely stated that the bill was
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 199

the notice proceeded, as it now seems it may in some cases,
from a person who was not at that time the holder of the
bill, it must clearly intimate that the party addressed is
looked to for payment.! But if it proceeded from the
holder, the American Courts do not require any formal
declaration to that effect, it being the natural inference
from the nature of the notice? It must appear that the
notice was given within a reasonable time after the dis-
honor, and protest, if there be one, and that due diligence
was exercised for this purpose. When the facts are ascer-
tained, the question whether they prove due diligence, or
notice within reasonable time, is a question of law.
Where this reasonable time is positively fixed by the law
of the particular country, it must be strictly followed. Thus,
though the protest must be made according to the law of
the piace of acceptance, yet notice to the drawer must be

 

due and unpaid, requesting immediate payment of the amount; adding thus,
— “Amount of bill, £98 15s., noting 5s.;” it was held, that the word “ not-

ing” implied presentment, and non-payment, and rendered the notice suffi- *

cient. Armstrong v. Christiani, 17 Law Jour. 181, C. P. 5 M. G. & S. 687.
See for other examples, Bromage v. Vaughan, 9 Ad. & El. 608, N. S.; Chard
v. Fox, 13 Jur. 960; Caunt v. Thompson, Id. 495; D’Wolf v. Murray, 2
Sandf. S. C. R. 166. [Where the indorsee of a note was dead, a notice of
its dishonor sent by mail, directed “to the Estate of H. O., deceased,” was
held not sufficient to charge the executor, there’ being no proof that such
notice was received by the executor, and the holder not having used due
diligence to learn the executor’s name. The notice should be given to the
executor or administrator, but if the holder does not know, and cannot, by
reasonable diligence, know whether there is one, or who he is, or where he
resides, he is excused from giving the notice. Massachusetts Bank v. Oliver,
10 Cush. 557. See also Brailsford v. Hodgeworth, 15 Md. 150.] ‘i

1 Kast vr. Smith, 11 Jur. 412; 4 Dowl. & L. 744.

2 Bank of United States v. Carneal, 2 Pet. 543, 553; Story on Promissory
Notes, § 354; Mills v. Bank of United States, 11 Wheat. 431,437. And
the same view is taken by Coleridge, J., in East v. Smith, 11 Jur. 412; 16
Law Jour. N. 8. 292. The holder of a bill may take advantage of a notice
of dishonor, given by any person who is himself liable to be sued on the
bill; if it were given in sufficient time to maintain an action in favor of such
party. Harrison v.-Ruscoe, 15 M. & W. 231; 10 Jur. 142; Lysaght »v,
Bryant, 19 Law J. 160; 2 C. & K. 1016.

3 Bank of Columbia v. Lawrence, 1 Pet. S. C. R. 578, 583; Carrol v.
Upton, 8 Comst. 272.
200 LAW OF EVIDENCE. [PART IV.

given according to the law of the place where the bill was
drawn, and to the indorsers, according to the law of the
place where the indorsements were respectively made! In
other cases, the reasonableness of the time of notice depends
on the particular circumstances of each case; but in general
it may be remarked, that where there is a regular inter-
course carried on between the two places, whether by post
or by packet-ships, sailing at stated times, the notice should
be sent by the next post or ship, after the dishonor and pro-
test, if a reasonable time remains for writing and forwarding
the notice; and where there are none but irregular commu-
nications, that which is most probably and reasonably cer-
tain and expeditious should be resorted to2 If the usual
mercantile intercourse is by post or mail, that mode alone
should be adopted, though others may concurrently exist.3:
But whatever be the mode of notice, the time of its trans-
mission should be proved with sufficient precision ; for, where
a witness testified that he gave notice in two or three days
after the dishonor, notice in two days being in time, but
“notice on the third day being too late, it was held not suffi-,
cient evidence to go to the Jury, and the plaintiff was non-
suited ; for the burden of proof of seasonable notice is on
him.*

§ 186 a. If the bill or note has been received by the holder
merely as a collateral security, the party from wliom he re-
ceived it being neither drawer nor indorser, nor the transferrer
of it by delivery, if payable to the bearer, the holder is not

 

1 Story on Bills, §§ 284, 285, 882-385; Chitty & Hulme on Bills, p. 167-
171, (9th edit.) A promissory note, payable by instalments, is negotiable,
and the indorser is entitled to a presentment upon the last day of grace after
each day of payment, and to notice, if each particular instalment is not paid
when due. Oridge v. Sherborne, 11 M. & W. 374.

2 Story on Bills, §§°286, 382, 383. Notice, sent by the post, will be con-
sidered as notice from the time at which, by the regular course of the post,
it ought to be received. Smith v. Bank of Washington, 5 S. & R. 385.

3 Ibid, §§ 287, 382, 383.

4 Lawson v. Sherwood, 1 Stark. R. 314. [See Brailsford v. Hodgeworth,
15 Md. 150.]
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 201

bound to prove a strict presentment of the bill or note; nor
will the other party be exonerated from the debt collaterally
secured by the delivery of such bill or note, unless he can
show that he has actually sustained some damage or preju-
dice by such non-presentment. And the same rule applies
to a party who is a mere guarantor of a bill or note; the bur-
den of proof being in both these cases on the debtor, or the
guarantor, to show an actual loss, or prejudice to his remedy
over.)

§ 187. Where the notice is sent by post, it need not be
sent on the day of dishonor, but it should go by the neat
practicable post after that day, having due reference to all
the circumstances of the case.” But if the action is com-
menced on the same day on which the notice is sent, (as it
well may be,?) the burden of proof being on the plaintiff to
show that the right of action was complete before the suit
was commenced, he must prove, not only that the notice was
sent, but that it reached its destination before process was
sued out. For the rule of law is, that where there is a doubt
which of two occurrences took place first, the party who is
to act upon the assumption that they took.place in a par-
ticular order, is to make the inquiry. The same rule applies
to successive indorsers ; each one being generally entitled to
at least one full day after he has received the notice, before
he is required to give notice to any antecedent indorser,
who may be liable to him for payment of the bill or note5

 

1 Story on Bills, § 372; Story on Promissory Notes, § 485; Hitchcock v.
Hunfrey, 5 M. & G. 559; Oxford Bank v. Hayes, 8 Pick. 423; Talbot v.
Gay, 18 Pick. 534; Gibbs v. Cannon, 9 S. & R. 202; Phillips v. Astling,
2 Taunt. 206. Where notice to a guarantor is requisite, it will be seasona-
ble if given at any time before action brought, if he has not been prejudiced
by the want of earlier notice. Ibid.; Babcock v. Bryant, 12 Pick. 133 :
Salisbury v. Hale, Id. 416; Walton v. Mascall, 13 M. & W. 72.

2 If the notice be put in the post-office in due time, the holder of the bill
or note #not prejudiced, if, through mistake or delay of the post-office, it
be not delivered in due time. Woodcock v. Houldsworth, 16 M. & W. 124.

3 Greely v. Thurston, 4 Greenl. 479.

4 Castriyue v. Bernabo, 6 Ad. & El. 498, N. S.

5 Story on Bills, §§ 288, 291, 297, 298, 384, 885; Bayley on Bills, pp. 268,
202 LAW OF EVIDENCE. [PART IV.

Sunday, not being a business day, is not taken into the
account, and notice on Monday, of a dishonor on Saturday,
is sufficient.

§187 a. If the bill or note has been transmitted to an
agent or banker, for the purpose of obtaining acceptance or
payment, he will be entitled to the same time, to give notice
to his principal or customer, and to the other parties to the
instrument, as if he were himself the real holder, and his
principal or customer were the party next entitled to notice ;
and the principal or customer will be entitled, after such
notice, to the like time, to give notice to the antecedent par-
ties, as if he received notice from a real holder, and not from
his own banker or agent. In short, in all such cases, the
banker or agent is treated as a distinct holder And acen-
tral or principal bank, and its different branches, are also
treated as distinct holders, in regard to bills and notes
transmitted from the one to the other for presentment or
collection.®

§ 188. If the parties reside in or near the same town or
place where the dishonor occurs, the notice whether given
verbally, or by a special messenger, or by the local or penny
post, should be given on the day of the dishonor, or, at
farthest, upon the following day, early enough for it to be
actually received on that day.t But where both parties

 

270, (5th ed.) ; Chitty & Hulme on Bills, pp. 337, 482, (9th edit.) If there
are two mails on the same day, notice by the latest of them is sufficient.
Whitwell v. Johnson, 17 Mass. 449, 454. See also Chick v. Pillsbury, 11
Shepl. 458. And if there are two post-oflices in the same town, notice sent
to either is, prima facie, sufficient. Story on Bills, § 297; Yeatman v. Erwin,
8 Miller’s (Louis.) R. 264. So is notice sent to any post-office, to which the
party usually resorts for letters. Bank of Geneva v. Howlett, 3 Wend. 328 ;
Reid v. Paine, 16 Johns. 218; Cuyler v. Nellis, 4 Wend. 398.

1 Eagle Bank v. Chapin, 3 Pick. 180; Story on Bills, §§ 288, 293, 308, 309.

2 Story on Bills, § 292; Story on Promissory Notes, § 326.

3 Clode v. Bayley, 12 M. & W. 51.

4 Story on Bills, § 289; Chitty & Hulme on Bills, pp. 887, 472, 473, (9th
edit.); Grand Bank v. Blanchard, 23 Pick. 305; Seaver v. Lincoln, 21
Pick. 267.
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 203

reside in the same town or city, the rule is, that the notice
must be personal; that is, must be given to the individual,
in person, or be left at his domicile or place of business; for
in such case it is not competent for the holder to put a letter
into the post-office and insist upon that as a sufficient notice,
unless he also proves that it did in fact reach the other party
in due season ; for it will not be presumed. And a custom |
among the notaries of a city to give notice in such cases
through the post-office, will not control this rule? But a
by-law or usage of a bank, establishing this mode of giving
notice, will bind parties to bills or notes made payable to
such bank.®

 

1 Story on Promissory Notes, § 322; Eagle Bank v. Hathaway, 5 Met.
215; Peirce v. Pendar, Id. 352; 3 Kent, Comm. 107, (5th edit.); 1 Hare &
Wallace’s Leading Cases, p. 254. In respect to this rule, the term “ holder ”
includes the bank at which the note is payable, and the notary who may hold
the note as the agent of the owner, for the purpose of making demand and
protest. Bowling v. Harrison, 6 How. S. C. Rep. 248; [Phipps v. Chase, 6
Met. 492; Phipps v. Milbury Bank, 8 Ib. 79. Whether the rule stated in
the text may, perhaps under peculiar circumstances, admit of exceptions,
quere. See Cabot, Bank v. Russell, 4 Gray, 169, by Shaw, C. J. Ina
large commercial city where the parties live within the limits of a penny-
post, by which the party to whom a notice is to be given, is accustomed to
receive his letters, a notice deposited in the post-office, is sufficient. Walters
v. Brown, 15 Md, 285.]

2 Wilcox v. McNutt, 2 How. (Miss.) R. 776.

3 Renner v. Bank of Columbia, 9 Wheat. 581; Jones v. Fales, 4 Mass.
245; 1 Hare & Wallace’s Leading Cases, p. 254-256; Chicopee Bank v.
Eager, 9 Met. 583. [“ A difficulty arises where the domicile or place of
business of the indorser is doubtful or uncertain; where there are several
post-offices in the same town; where the indorser is nearer the post-office of

‘a town other than the one in which he resides; where he is accustomed to
receive his letters at one post-office or at several different ones, in the same
or another town. The nearest approximation toa general rule to be deduced
from the cases seems to be this — that whenever circumstances of the fore-
going nature exist, to take the case out of the ordinary one of a fixed and
known residence of the indorser and a regular mail to the established post-
office of such place, it is the duty of the holder or of the notary, or other
officer or agent employed by him, to make reasonable inquiries at the proper
sources, to ascertain the residence or place of business of the indorser; at
what post-office, one or more in the same or another town, he is accustomed
to receive his letters; and in the absence of such information, to find out
the post-office nearest, or in some other respect most convenient to, his resi-
204 LAW OF EVIDENCE. [PART Iv.

§ 189. It will be sufficient if the note or bill described in
the notice, substantially corresponds with.that described on
the record. A variance in the notice, to be fatal, must be
such as conveys to the party no sufficient knowledge of the
particular note or bill, which has been dishonored. If it does
not mislead him, but conveys to him the real fact without
any doubt, the variance cannot be material, either to guard
his rights, or to avoid his responsibility... Thus, where the
written notice, given on the 22d of September, described the
note as dated on the 20th of the same month, payable in
sixty days, whereas in fact it bore date on the 20th of July,
but it appeared, that there was no other note between the
parties, this was held sufficient, the note being otherwise
correctly described.?, So, where the bill was payable at the
London Joint-Stock Bank, but in the notice it was described
as payable at the London and Westminster Joint-Stock Bank,
which was shown to be a different bank, yet it was held suffi-
cient2 So, where there was but one note between the par-
ties to which the notice could apply, but the sum was erro-
neously stated in the notice, it was held sufficient. And in
such cases, the question is for the Jury to detarmine, whether

 

dence; and then address and forward the notice by such mail and to such
post-office as that it would be most likely to reach him certainly and prompt-
ly.” By Shaw, C. J., in Cabot Bank v. Russell, 4 Gray, 169,170. Where
there are two post-offices in a town, notice by letter to an indorser, addressed
to him at the town generally, is sufficient, unless the party has been gener-
ally accustomed to receive his letters at one of the offices in particular. The
plaintiff makes out a prima facie case by proving notice by letter addressed
to the defendant at the town generally. The defendant may rebut this by
showing that le usually receives his letters at one office only, and that this
might have been known by reasonable inquiry at the place where the letter
was mailed. Morton v. Westcott, 8 Cush. 427. See also Manchester Bank
v. White, 10 Foster, (N. H.) 456; Manchester Bank v. Fellows, 8 Ib. 302;
Windham Bank v. Norton, 22 Conn. 213; True v. Collins, 8 Allen, 438.]

1 Mills v. Bank of the United States, 11 Wheat. 431, 435; Saltmarsh v.
Tuthill, 13 Ala. 390.

2 Mills v. Bank of the United States, 11 Wheat. 481, 435.

3 Bromage v. Vaughan, 10 Jur. 982. See also Bailey v. Porter, 14 M. &
W. 44; Rowlands v. Springett, Id. 7; 9 Jur. 356.

4 Bank of Alexandria v. Swann, 9 Pet. 38, 46,47; Stockman v. Parr,
10. & K. 41; 11 M. & W. 809.
PART Iv.] BILLS OF EXCHANGE AND PROMISSURY NOTES. 205

the defendant must or may not have known to what note
the notice referred.!

§ 190. The plaintiff, however, need not prove notice of

. the dishonor of a bill or note if the defendant has waived his
right to such notice, or has admitted it. This may be shown,
not only by an express waiver, or admission, but, as against
the drawer, it may be inferred from circumstances amounting
to it, such as an express promise to pay the amount of the
bill or note, even though conditional as to the mode of pay-
ment; or, a partial payment; or, any acknowledgment by
the drawer, of his liability to pay.2_ But the promise or par-
tial payment, to have this effect, must be made with a full
knowledge of all the facts, must be unequivocal, and amount
to an admission of the right of the holder. So, the accept-
ance, by the indorser, of adequate collateral security from the
maker, or accepting an assignment of all the maker’s prop-

 

1 Smith v. Whiting, 12 Mass. 6; Bank of Rochester v. Gould, 9 Wend.
279; Ready v. Seixas, 2 Johns. Cas. 337. [See also Housatonic Bank v.
Laflin, 5 Cush. 546; Crocker v. Getchell, 10 Shep. 892; Wheaton v. Wil-
marth, 13 Met. 422; Clark v. Eldridge, Ib. 96 ; Cayuga Co. Bank v. Warden,
1 Comst. 413; Dennistoun v. Stewart, 17 How. U. S. 606 ; Younges v. Lee,
18 Barb. (N. Y.) 187; Shelton v. Braithwaite, 7 M. & W. 436; Stockman
v. Parr, 11 Ib. 809.]

2 Story on Bills, § 320; Hopkins v. Liswell, 12 Mass. 52. Thompson v.
Wynn, 12 Wheat. 183; Martin v. Ingersoll, 8 Pick. 1; Creamer v., Perry,
17 Pick. 332; Central Bank v. Davis, 19 Pick. 373 ; Warden v. Tucker, 7
Mass. 449; Boyd v. Cleaveland, 4 Pick. 525; Farmer v. Rand, 2 Shepl. 225;
Ticonic Bank v. Johnson, 8 Shepl. 426; Levy v. Peters, 9 S. & R. 125;
Fuller v. McDonald, 8 Greenl. 213; Chitty & Hulme on Bills, p. 660, (9th
edit.); Lawrence v. Ralston, 3 Hibb. 102; Ritcher »v. Selin, 8 S. & R. 438;
Pierson v. Hooker, 3 Johns. 71; Campbell v. Webster, 2 M. G. & S. 268,
and cases there cited. Walker v. Walker, 2 Eng. 542. Whether the
evidence establishes the fact of a waiver, or admission, is a question for the
Jury. Union Bank of Georgetown v. Magruder, 7 Pet. 287. Parol evi-
dence of statements verbally made by the indorser, at the time of a blank
indorsement of a note, though not admissible to vary the contract which the
law implies from the indorsement, are admissible to show a waiver of a de-
mand and notice. Sanborn v. Southard, 12 Shepl. 499. In Texas, parol
evidence of a waiver of the right to due diligence in the holder, is inadmis-
sible. Hartley’s Dig. art. 2526.

3 Ibid.

VOL. Il. 18
206 ‘LAW OF EVIDENCE. [PART IV.

erty, for this purpose, though it be inadequate, has been held
‘a waiver of notice, if taken before the maturity of the note ;1
but not if taken afterwards.2 Nor is an assignment of prop-
erty to trustees, for the security, among others, of an indorser,
‘sufficient to dispense with proof of a regular demand and
notice? And even an express waiver of notice, will not
amount to a waiver of a demand on the maker of the note.!
‘A known usage may also affect the general law on this sub-
ject. Thus, if a note is made payable at a particular bank,
the usage of that bank, as to the mode and time of demand
and notice, will bind the parties, whether they had knowl-
edge of it or not; and if the note is discounted at a bank,
its usages, known to the parties, are equally binding.

§ 190 a. Proof of notice will also be dispensed with, where
it was morally or physically impossible to give it; as, by the
absconding of the party, or where the holder was justifiably
ignorant of the place of his abode; or, by the general preva-
lence of a malignant disease ; or the sudden illness or death

of the holder; or any other inewtable casualty or obstruc-
tion. The omission of notice is also excused, where the
- holder of the bill stands in the relation of an accommodation
holder or indorser to the drawer or other indorser, the latter
being the real debtors. So, if the drawer of a bill had no right
to draw, and no reasonable ground to expect that the bill
would be honored by the drawee; as, if he had drawn it
without funds in the hands of the drawee, or any expectation
of funds in his hands to meet it, or any arrangement or agree-
ment on his part to accept it; for in these cases he would have
no remedy against any one in consequence of the dishonor
of the bill. But if he were a mere accommodation drawer, or

 

1 Bond v. Farnham, 5 Mass. 70; Andrews v. Boyd, 3 Met. 434; Mead v.
Small, 2 Greenl. 207.

2 Tower v. Durell, 9 Mass. 332.

3 Creamer v. Perry, 17 Pick. 332.

4 Berkshire Bank v. Jones, 6 Mass. 524; Backus v. Shepherd, 11 Wend.
629.

5 Lincoln & Kennebec Bank v. Page, 9 Mass. 155; Blanchard ». Hilliard,
11 Mass. 85; Smith v, Whiting, 12 Mass.6; City Bank v. Cutter, 3 Pick.
414.
t

PART Iv.]| BILLS OF EXCHANGE AND PROMISSORY NOTES. 207

would be entitled to some remedy over against ‘some other
party, or would otherwise be exposed to loss and damage, he
is entitled to notice. So, if having funds in the ‘hands of the
drawee, or on the way to him, the drawer has withdrawn,
” or stopped them, no proof of notice is requisite. Nor is it
required in an action against the indorser of a bill or note,
where he is the real debtor, for. whose accommodation the
instrament was created, and no funds have been provided in
the hands of other parties for its payment. Nor, where, being
an accommodation indorser, he has received funds sufficient
for the payment of the bill or note in full, and to secure him
an ample indemnity. Nor, where, by arrangement between
any of the parties, the necessity of notice has been expressly
or impliedly dispensed with.!

§ 191. If the notice has been given by letter or other writing,
it is now held, that secondary evidence of the contents of the
letter or writing is admissible, without any previous notice
to the defendant to proguce the original; for the rule, which
requires proof of notice to produce a paper, in order to let in
secondary evidence of its contents, is not capable of applica-
tion to that, which is itself a notice, without opening an in-
terminable inquiry? But where the secondary evidence is
uncertain or doubtful, or without sufficient precision as to
dates or the like, it is always expedient to give due notice to
the defendant to produce the paper. And whenever notice
to produce a paper is given, it should particularly specify the
writing called for.®

 

1 Story on Bills, § 308-317. Story on Promissory Notes, § 355-357.
Knowledge in fact of the dishonor of a bill, where the drawer is himself the
person to pay it, as executor of the acceptor, amounts to notice. Caunt ».
Thompson, 7 M. G. & 8. 400; 6 D. & L. 621. But knowledge of the prob-
ability, however strong, that the bill will be dishonored, is not sufficient to
dispense with notice. Ibid; [Fuller v. Hooper, 3 Gray, 334.]

2 Sée ante, Vol. 1, § 561; Chitty & Hulme on Bills, pp. 656, 657, (9th
edit.) ; Ackland v. Pierce, 2 Campb. 601; Roberts v. Bradshaw, 1 Stark. R.
28; Eagle Bank v. Chapin, 8 Pick. 180; Lindenberger v. Beall, 6 Wheat.
104.

3 France v. Lucy, Ry. & M. 341; Jones v. Edwards, 1 M’Cl. & Y. 139;
Morris v. Hauser, 2 M. & Rob. 392; Ante, Vol. 1, § 560-563; Chitty &
Hulme on Bills, pp. 657, 658.
208 LAW OF EVIDENCE. [PART Iv.

§ 192. But the rule of not requiring notice to produce a
written notice of the dishonor of a bill or note, is restricted:
to the bill or note, on which the action is brought; for if the
question is upon notice of the dishonor of other bills or notes,
notice to produce the letters giving such notice must be given
and proved, as in ordinary cases.!. And if notice to produce
has been given, the attorney of the adverse party may be
called, to testify whether he has in his possession the paper
sought for; in order to let in secondary evidence of its con-
tents.?

§ 193. When notice of the dishonor of a bill or note has
been given by letter, it will in general suffice to show that
a letter, containing information of the fact, and properly
directed, was in due time put into the proper post-office? or
left at the defendant’s house.* It is ordinarily sufficient, that
it be directed to the town in which the party resides, though
there may be several post-offices in it; unless it is known to’
the holder that he usually receives has letters at a particular
office; in which case it should be directed to that office;
the rule being, that the notice should be sent to the place
where it will be most likely promptly to reach the party for
whom it is intended.6 In civil cases,° but not in criminal,’

 

1 Lanauze v. Palmer, 1 M. & Malk. 31; Aflao v. Fourdrinier, Ibid. 335, n.

2 Bevan v. Waters, 1M. & Malk. 235; Chitty & Hulme on Bills, p. 58,
(9th edit.) ,

3 Lawson v. The Farmers’ Bank of Salem, (Supreme Court of Ohio, 1853,)
1 Am. Law Reg. p. 617; [Ante, § 188.]

4 Chitty & Hulme on Bills, p. 658, (9th edit.) ; Story on Bills, §§ 297, 298,
300; Shed v. Brett, 1 Pick. 401; Hartford Bank v. Hart, 3 Day, 491-
Delivery to the bell-man is sufficient. Pack ». Alexander, 3 M. & Scott,
789. And any delay in the post-office will not prejudice the holder who has
sent the notice. Dobree v. Eastwood, 3 C. & P. 250; Woodcock v. Houlds-
worth, 15 M. & W. 124. It is not necessary that the notice should reach
the party before the action is brought; it is sufficient that it is seasonably
sent. New England Bank v. Lewis, 2 Pick. 128.

.5 See 1 Hare & Wallace’s Leading Cases, pp. 256, 257, and the authorities
there cited. [Ante, § 188.] :

6 Arcangelo v. Thompson, 2 Campb. 623; New Haven County Bank v.
Mitchell, 15 Conn. 206.

7 Rex v. Watson, 1 Campb. 215.
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 209

the postmark on the letter will be sufficient primd facie evi-
dence of the time and place of putting it into the post-office.
And if there is any doubt of the genuineness of the post-
mark, it may be established by the evidence of any person in
the habit of receiving letters with that mark, as well as by a
clerk in the post-office’ The fact of sending the letter to the
post-office, after evidence has been given that it was written,
may be shown by proof of the general and invariable course
of the plaintiff’s business or office, in regard to the transmis-
sion of his letters to the post-office, with the testimony of all
the persons, if living, whose duty it was to hand over the
letters, or to carty them thither, that they invariably handed
over, or carried all that were delivered to them, or were left
in a certain place for that purpose; and if books and entries
were kept, of such letters sent, they should be produced, with
proof of the handwriting of deceased clerks, who may have
made the entries. The mere proof of the course of the office
or business, without calling the persons actually employed,
if living, will not ordinayily suffice.?

§ 194. As to the place to which notice may be sent, this
may be either at the party’s counting-room, or other place of
business, or at his dwelling-house; or, at any other place
agreed on by the parties. And if a verbal notice is sent to
the place of business during the usual business hours, and no

person is there to receive it, nothing more is required of the
holder.?

§ 195. If no notice of dishonor has been given, or no pre-

 

1 Abbey »v. Lill, 5 Bing. 299; Woodcock v. Houldsworth, 15 M. & W.
124.

2 Sturge v. Buchanan, 2 M. & Rob. 90; 10 Ad. & El. 598, S. C.; 2 Per.
& Dav. 573, S. C.; Hetherington v. Kemp, 4 Campb. 193; Toosey v. Wil-
liams, 1 M. & Malk. 129; Chitty & Hulme on Bills, p. 659, (9th ed.);
Hawkes v. Salter, 4 Bing. 715; 1 M. & P. 750.

3 Chitty & Hulme on Bills, p. 454, (9th ed.); Crosse v. Smith, 1 M. & S.
545; Whitwell v. Johnson, 17 Mass. 449; The State Bank v. Hurd, 12 Mass.
172; Allen v. Edmonson, 2 C. & K. 547; [Ante, § 178-180.]

18 *
210 LAW OF EVIDENCE. [PART Iv.

sentment or protest has been made, the plaintiff may excuse
his neglect by proof of facts, showing that presentment or
notice was not requisite! Thus, where the defendant was
drawer of the bill, the want of presentment is excused by prov-
ing that he had no effects in the hands of the drawee, and no
reasonable grounds to expect that the bill would be honored,
from the time it was drawn until it became due. So if,
having funds in the hands of the drawee, or on the way to
him, the drawer has withdrawn or stopped them.? So, the
want of notice of dishonor is excused, in an action against
the drawer, by proof that the bill was accepted, merely for
the accommodation of the drawer, who was therefore bound at
all events to pay it; and this fact may well be inferred by the
Jury, if the bill is made payable at the drawer’s own house.t
And the want of effects in the drawte’s hands, he being the
drawer’s banker, may be shown by the banker’s books; the
production and verification of which by one of his clerks is
sufficient, though the entries are in the handwriting of sev-
eral. Nor is proof of notice requisite in an action against
the indorser of a bill or note, where he ¢s the real debtor, for
whose accommodation the instrument was created, and no
funds have been provided in the hands of other parties for

 

1 Where a note is payable at a certain place and on demand after a cer-
tain time, no averment or proof of a demand is necessary to the maintenance
of the action. Gammon »v. Everett, 12 Shep. 66.

2 Chitty & Hulme on Bills, pp. 436, 437, (9th ed.) ; Story on Bills, § 308-
317, 329, 367-369; Rucker v. Hiller, 16 East, 43; Legee v, Thorpe, 12 East,
171; Bickerdike v. Bollman,1 T. R. 405; Hammond v. Dufrene, 3 Campb.
145. Soas to the indorser of a note. Corney v. Da Costa, 1 Esp. 302.
See also Campbell v. Pettengill, 7 Greenl. 126 ; French v. Bank of Colum-
bia, 4 Cranch, 141; Austin v. Rodman, 1 Hawks, 194; Robinson v. Ames,
20 Johns. 146. And see Dollfus v. Frosch, 1 Denio, R. 367; [Fuller v.
Hooper, 3 Gray, 334.]

3 Bayley on Bills, 296; Story on Bills, § 318; [Fuller v. Hooper, 3 Gray,
334.]

4 Sharp v. Bailey, 9 B.& C.44; 4M. & Ry. 4; Callott v. Haigh, 3 Campb.
281. Ifthe transaction between the drawer and drawee isillegal, the payee,
being the indorser, and conusant of the illegality, is liable without notice.

» Copp v. McDougall, 9 Mass. 1.
5 Furness v. Cope, 5 Bing. 114.
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 211

its payment.’ So, if the holder was ignorant of the drawer’s
residence, this excuses the want of notice to him, if he has
made diligent inquiry for the place of his residence ; of which
fact the Jury will judge” So, if the notice was sent to the
wrong person, the mistake having arisen from indistinctness
in the drawer’s writing on the bill;? or if the drawer ver-
bally waives the notice, by promising to pay the bill, or to
call and see if the bill is paid;+ or if the indorser himself
informs the holder that the maker has absconded, and nego-
tiates for further time of payment; the want of notice is
excused. If the agent of a corporation drawsa bill in its name
on its treasurer, payable to its own order, and indorses it in
the name of the corporation, a presentment to the treasurer,
and his refusal to honor the bill, is of itself notice to the
corporation of both those facts. So, if the presentment in
season was impossible, by reason of unavoidable accident, a
subsequent presentment, when it becomes possible, will ex-
cuse the delay.’ But the actual insolvency of. the maker of
a note at the time when it fell due, does not excuse the want
of notice to the indorser;* even though the fact was known
to the indorser, who indorsed it to give it currency.2 Nor

 

1 Story on Bills, § 314-316.

2 Browning v. Kinnear, Gow, R. 81; Bateman v. Joseph, 12 East, 433;
Harrison v. Fitzhenry, 3 Esp. 240; Siggers v. Brown, 1 M. & Rob. 520;
Hopley v. Dufresne, 15 East, 275; Holford v. Wilson, 1 Taunt. 15; Whit-
tier v. Graffham, 3 Greenl. 82.

8 Hewitt v. Thomson, 1 M. & Rob. 541.

4 Phipson v. Kneller, 4 Campb. 285; 1 Stark. R. 116; Chapman v. An-
nett, 1 C. & K. 552. Or, if before maturity of the note or bill, the indorser
promises to pay upon the agreement of the holder to enlarge the time.
Norton v. Lewis, 2 Conn. 478.

5 Leffingwell v. White, 1 Johns. Cas. 99.

6 Commercial Bank v. St. Croix Man. Co. 10 Shepl. 280.

7 Scholfield v. Bayard, 3 Wend. 488; Patience v. Townley, 2 Smith, R.
223.

8 Groton v. Dalheim, 6 Greenl. 476; Jackson v. Richards, 2 Caines,
843; Crossen v. Hutchins, 9 Mass. 205; Sandford v. Dallaway, 10 Mass.
52.

9 Nicholson v. Gouthit, 2 H. Bl. 609; Buck v. Cotton, 2 Conn. 126;
Gower v. Moore, 12 Shepl. 16.
212 LAW OF EVIDENCE. [PART Iv.

does the insolvency of the acceptor excuse the want of notice
to the drawer.

§ 195 a. But in the case of a banker’s check, the drawer
is treated as in some sort the principal debtor; and he is not
discharged by any laches of the holder, in not making due
presentment, or in not giving him due notice of the dishonor,
unless he has suffered some injury or loss thereby ; and then
only pro tanto. And the burden of proof is on the holder,
to show, as part of his case, that no damage has accrued or
can accrue to the drawer by his omission of any earlier
demand or notice; or, in other words, that his situation, as
regards the drawer, remains as it was at the time of the dis-
honor?

§ 196. So, as we have already seen, if the drawer of a
bill, after full notice of the laches of the holder, pays part of
‘the bill, or promises to pay it, this excuses the want of evi-
dence of due presentment, protest, and notice? The like
evidence suffices in an action against the indorser of a bill or
note. But it has been considered, that, though the waiver
by the drawer, of his right to presentment and notice, may
be inferred from circumstances and by implication, yet that
an indorser is not chargeable after laches by the holder, un-
less upon his express promise to pay.

 

1 Whitfield v. Savage, 2 B. & P. 277; May v. Coffin, 4 Mass. 341. [No-
tice of the non-acceptance and non-payment of a bill of exchange drawn by
a partner upon his partnership, need not be given to the drawer, after all
the partners have gone into insolvency. Fuller v. Hooper, 8 Gray, 334.]

2 Story on Promissory Notes, §§ 492, 498; 3 Kent, Comm. 104, note (a,)
5th edit.; Little v. Phenix Bank, 2 Hill, (N. Y¥.) R. 425; Kemble v. Mills,
1M. & Gr. 757.

3 Supra, § 190; Chitty & Hulme on Bills, p. 660, (9th edit.) ; Duryee v.
Dennison, 5 Johns. 248; Miller v. Hackley, Id. 375; Crain v. Colwell,
8 Johns. 384.

4 Ibid.; Taylor v. Jones, 2 Campb. 105. See also Trimble v. Thorn,
16 Johns. 152; Jones v. Savage, 6 Wend. 658; Leonard v. Gary, 10 Wend.
504,

5 Borradaile v. Lowe, 4 Taunt. 93. And see Wilkinson v. Jadis, 1 M. &
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 213

§ 197. It may be proper here to add, that, where matter in
excuse of the want of demand and notice is relied upon, it is
usual to declare as if there had been due presentment and
notice, some latitude in the mode of proof being allowed, and
the evidence being regarded not strictly as matter in excuse,
but as proof of a qualified presentment and demand, or of
acts which, in their legal effect, and by the custom of mer-
chants, are equivalent thereto. Moreover, in all cases, where
a note is given in evidence upon the money counts, any proof
_ which establishes the plaintiff’s right to recover upon the
note, supports the count.

§ 198. The perence to an action on a bill of exchange or
a promissory note, most frequently is founded on some de-
fect of proof on the part of the plaintiff, in making out his
own title to recover; which has already been considered.
Several other issues, such as Infancy, Tender, the Statute of
Limitations, &c., which are common to all actions of As-
sumpsit, will be treated under those particular titles. It will
therefore remain to consider some defences, which are pecu-
liar to actions on bills and notes.

§ 199. In regard to the consideration, it is well settled in
the law-merchant, that, in negotiable securities, in the hands
of innocent third persons, a valid and sufficient consideration
for the drawing or acceptance is conclusively presumed. But
as between the original parties, and those identified in equity
with them, this presumption is not conclusive but disputable,
and the consideration is open to inquiry. Wherever, there-
fore, the plaintiff, being an indorsee, is shown to stand in the

 

Rob. 41; 2 B. & Ad. 188; Lord v. Chadbourne, 8 Greenl. 198; Fuller v.
McDonald, Id. 213.

1 North Bank v. Abbott, 13 Pick. 465, 469,470; Hill v. Heap, 1 D. &
R. 57.— And see Cory v. Scott, 3 B. & Ald. 619, 625, per Holroyd, J., acc.
But Bailey, J., was inclined to think, that the excuse for want of notice
should be specially alleged. Id. p. 624. See also in accordance with the
text, Norton v. Lewis, 2 Conn. R. 478; Williams v. Matthews, 3 Cowen,
252.
214 LAW OF EVIDENCE. [PART IV.

place of the original promisee or party, as, by receiving the
security after it was dishonored, or the like, the defendant, as
we have already seen,! may set up the defence of illegality
or insufficiency in the consideration; in which case he must
be prepared with evidence to prove the circumstances under
which the bill or note was drawn, and that it was transferred
after its dishonor? Thus, in an action against the acceptor
of a bill, given for the price of a horse, warranted sound, it
appearing that the holder of the bill and the original payee
were identical in interest, the breach of the warranty, with
an offer to return the horse, were held to constitute a good
defence.’ If the consideration has only partially failed, and
the deficiency is susceptible of definite computation, this

 

1 Supra, § 171. At what time a note, payable on demand, is to be con-
sidered by the purchaser as a dishonored security, merely from its age, is
not perfectly clear, and perhaps the case does not admit of determination by
any fixed period, but must be left to be determined upon its own circum-
stances. In Barough v. White, 4 B. & C. 325, the time of the transfer of
the note does not appear; but it was payable with interest, which Bailey,
J., mentioned as indicating the understanding of the parties, that it would
remain for some time unpaid. See also Sanford v. Mickles, 4 Johns, 224 ;
Losee v. Dunkin, 7 Johns. 70; Thurston o. McKown, 6 Mass. 76. In the
last case, the note had been running seven days from the date, and was held
not dishonored. But the lapse of eight months, and upwards, has been held
sufficient evidence of dishonor. Ayer v. Hutchins, 4 Mass. 370. See also
Freeman v. Haskins, 2 Caines, 368; Sylvester v. Crapo, 15 Pick. 92; Sice
v. Cunningham, 1 Cowen, 397, 408-410. In this case, the lapse of five
months was held to discharge the indorser. See 3 Kent, Comm. pp. 91, 925
Niver v. Best, 4 Law Rep. 183, N.S. By a statute of Massachusetts, re-
specting notes payable on demand, a demand made at the end of sixty days
from the date, without grace, or at any earlier period, is to be deemed made
in reasonable time; but after sixty days it is deemed overdue. Stat. 1839,
ch. 121.

2 Chitty & Hulme on Bills, pp. 648, 662, (9th edit.) ; Webster v. Lee,
5 Mass. 334; Ranger v. Carey, 1 Met. 369; Wilbour v. Turner, 5 Pick.
526. Thus, he may show that the note or bill was void, by the statute of
the State, being made and delivered on Sunday. Lovejoy v. Whipple,
3 Washb. 379. And see Story on Contracts, § 616-620, (2d edit.) [A ne-
gotiable promissory note, part of the consideration of which is liquors unlaw-
fully sold, is wholly void in the hands of the promisee. Perkins v. Cum-
mings, 2 Gray, 258.]

3 Lewis v. Cosgrave, 2 Taunt. 2.
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 215

may be shown in defence pro tanto. But if the precise
amount to be deducted is unliquidated, this cannot be shown
in reduction of damages, but the defendant must resort to
his cross-action.1 Mere inadequacy of consideration cannot
be shown simply to reduce the damages, though it may be
proved as evidence of fraud, in order to defeat the entire
action.”

§ 200. How far other equities between the original parties
may be set up in defence, against an indorsee affected with
actual or constructive notice, is a question on which the
decisions are not perfectly uniform. It has already been
intimated, that in the law-merchant, the equities thus per-
mitted to be set up, are those only that attach to the partic-
ular bill, and not those arising from other transactions. But
in the Courts of several of the United States, the defend-
ant has been permitted, in many cases, to claim any set-off,
which he might have claimed against the original party,
though founded on other transactions. In all cases, where

 

1 See supra, tit. Assumpsit; Chitty & Hulme on Bills, p. 76-79, 662,
(9th edit.) [Where a promissory note is given upon two distinct and inde-
pendent considerations, each going to a distinct portion of the note, and one
is a consideration which the law deems valid and sufficient to support a con-
tract, and the other not, there the contract will be apportioned as between
the original parties or those that have the same relative rights, and the
holder will recover to the extent of the valid consideration and no further;
and when the parts of the note are not respectively liquidated and definite, a
Jury will settle, on the evidence before them, what amount is founded on
one consideration and what on the other. Parish v. Stone, 14 Pick. 198;
see also Chicopee Bank v. Chapin, 8 Met. 40; Stoddard v. Kimball, 6 Cush.
469; Bond v. Fitzpatrick, 4 Gray, 89; Lothrop v. Snell, 11 Cush. 453.]

Solomon v. Turner, 1 Stark. R. 51. ‘

3 Supra, § 171; Burrough v. Moss, 10 B. & C. 558; Story on Bills, § 187,
and note (3); Story on Promissory Notes, § 178. Though the note is made
payable to the maker’s own order, he will be entitled to the same defence
against an indorsee who received it when over-due, as if it were made pay-
able to and indorsed by a third person. Potter v. Tyler, 2 Met. 58. ~

4 Sargent v. Southgate, 5 Pick. 812; Ayer v. Hutchins, 4 Mass. 370;
Holland v. Makepeace, 8 Mass. 418; Shirley v. Todd, 9 Greenl. 88. See
also the cases cited in Bayley on Bills, p. 544-548, Phillips & Sewall’s notes,
216 LAW OF EVIDENCE. [PART Iv.

the plaintiff is identified with the original contracting party,
the declarations of the latter, made while the interest was in
him, are admissible in evidence for the defendant But,
where the plaintiff does not stand on the title of the prior
party, but on that acquired by the bond fide taking of the
bill, it is otherwise.?

§ 201. The acceptor of a bill may also show as a defence,
that his acceptance has been discharged by the holder; as, if
the holder informs him that he has settled the bill with the
drawer, and that he needs give himself no further trouble ;
or, where the holder, knowing him to be an accommodation
acceptor, and having goods of the drawer, from the proceeds
of which he expects payment, informs him that he shall look
to the drawer alone, and shall not come upon the acceptor ;
or, if he should falsely state to the acceptor, that the bill was
paid, or otherwise discharged, whereby the acceptor should
be induced to give up any collateral security ; or, if he should

 

(2d Am. edit.); Tucker v. Smith, 4 Greenl. 415; Sylvester v. Crapo, 15
Pick. 92. By a statute of Massachusetts, the maker of a note payable on
demand, is admitted to any defence against the indorsee, which would be
open to him in a suit brought by the payee. Stat. 1839, ch. 121.

1 Ante, Vol. 1,§ 190; Beauchamp y Parry, 1 B. & Ad. 89; Welstead v.
Levy, 1 M. & Rob. 138;. Chitty & Hulme on Bills, pp. 664, 665, (9th edit.) ;
Shirley v. Todd, 9 Green]. 83; Hatch v. Dennis, 1 Fairf. 244; Pocock ».
Billings, 2 Bing. 269; Hacket ». Martin, 8 Greenl. 77, [In a suit against

| the maker of a promissory note by one to whom it was transferred long after
it was overdue, the declarations of a former holder, made while he held the
note, but after it was due, are ailmissible in evidence to show payment to

‘ such former holder, or any right of set-off which the maker had against him.

i Such declarations, made by such holder before he took the note, are inadmis-

| sible; and such declarations by such holder, made after assigning the note

| to one from whom the plaintiff since took it, are not competent testimony,

{ unless such assignment was conditioned to be void upon the payment to the
assignor of a less sum than the amount due on the note, in which case such
declarations are competent evidence for the defendant to defeat the recovery
against him of any interest remaining in the assignors, after such conditional
assignment. Bond », Fitzpatrick, 4 Gray, 89; Fisher v. Leland, 4 Cush.
456; Stoddard v. Kimball, Ib. 604.]

2 Smith v. De Wruitz, Ry. & M. 212; Shaw v. Broom, 4 Dowl. & Ry.
730.
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 217

expressly agree to consider the acceptance at an end, and
make no demand on the acceptor for several years! And
whatever discharges the acceptor, will discharge the indorser ;
as, indeed, whatever act of the holder discharges the principal
debtor, will also discharge all others contingently liable, upon :
his default ;? and, more generally speaking, the release of any
party, whether drawer or indorser, will discharge from pay-
ment of the bill every other party to whom the party released
would have been liable; if such party released should have
paid the bill.

§ 202. If the defendant is not the principal and absolute
debtor, but is a party collaterally and contingently liable,
upon the principal debtor’s default, as is the drawer or in-
dorser, he may set up in defence any valid agreement between
the holder of the security and the principal debtor, founded
upon an adequate consideration, and made without his own
concurrence, whereby a new and further time of payment is
given to the principal debtor; and this, though the liability
of the drawer or indorser had previously become fixed and
absolute, by due presentment, protest, and notice. But mere
neglect to sue the principal debtor, or a receipt of part pay-
roent from him, will not have this effect.5 This defence, how-
ever, may be rebutted on the part of the plaintiff, by proof
that the agreement was made with the assent of the defend-

 

1 Story on Bills, §§ 252, 265-268, 430-433.

2 Story on Bills, §§ 269, 270, 437.

3 Story on Bills, § 270; Sargent v. Appleton, 6 Mass. 85. [An agree-
ment by the holder of a promissory note payable on demand, made ten
months after the date of the note, never to sue the maker of the note, and
not to call on the indorsee for a period of nine months, suspends, but does
not destroy, the claim against such indorsee. Hutchins v. Nichols, 10 Cush.
299; see also, Sohier v. Loring, 6 Ib. 5373 Greely v. Dow, 2 Met. 176.]

4 Story on Bills, §§ 425, 426, 427; Chitty & Hulme on Bills, p. 408-415,
(9th edit.) ; Philpot v. Bryant, 4 Bing. 717, 721; Bank of United States v.
Hatch, 6 Peters, R. 250; Mottram v. Mills, 2 Sandf. 8. C. R. 189; Greely v.
Dow, 2 Met. 176.

5 Ibid.; Kennedy v. Motte, 3 McCord, 13; Walwyn v. 8. Quintin, 1 B.&
P. 652; Frazier v. Dick, 4 Rob. (Louis.) R. 249.

VOL. II. 19
218 LAW OF EVIDENCE. [PART Iv.

ant; or, that after full notice of it, he promised to pay ;* or,
that the agreement was without consideration, and therefore
not binding?

§ 203. The competency of the parties to a bill or note, as
witnesses, in an action upon it between other parties, has
been briefly considered in the preceding volume ;* where it
has been shown that they are generally held admissible or
not, like any other witnesses, according as they are or are
not interested in the event of the suit. Thus, in an action
against the acceptor of a bill, the drawer is a competent wit-
ness for either party ; for if the plaintiff recovers, he pays the
bill by the hands of the acceptor, and if not, then he is liable
directly for the amount. So, if a bill has been drawn by
one partner in the name of the firm, to pay his own private
debt, another member of the firm is a competent witness
for the acceptor to prove that the bill was drawn without
authority But if the acceptance was given for the ac-
commodation of the drawer, he is not a competent witness
for the acceptor, to prove usury in the discounting of the
bill, without a release. Nor is he competent, where the
amount of his liability over, in either event of the suit, is not
equal.’

§ 204. So, also, in an action against one of several makers
of a note, another maker of the same note is a competent

 

1 Chitty & Hulme on Bills, pp. 415, 416, (9th ed.) ; Story on Bills, § 426.

2 McLemore v. Powell, 12 Wheat. 554.

3 Ante, Vol. 1,§ 399. Whether a party to a negotiable instrument, which
he has put in circulation, is a competent witness to prove it void in its crea-
tion, quere; and see ante, Vol. 1, §§ 383, 384, 385.

4 Dickinson v. Prentice, 4 Esp. 82; Rich v. Topping, Peake’s Cas. 224;
Lowber v. Shaw, 5 Mason, 241; Humphrey » Moxon, 1 Peake’s Cas. 72;
Chitty & Hulme on Bills, p. 673, (9th ed.) ; Storer v. Logan, 9 Mass. 55 ;
Crowley v. Barry, 4 Gill, 194.,

5 Ridley v. Taylor, 13 East, 176.

6 Hardwick v. Blanchard, Gow, R. 113; Burgess v. Cuthil, 6 C. & P. 282.
And see Bowne v. Hyde, 6 Barb. 5. C. R. 392.

7 Scott v. McLellan, 2 Greenl. 199; Jones v. Brooke, 4 Taunt.468; Ante
“Vol. 1, § 401; Faith ». McIntyre, 7 C. & P. 44. :
PART IV.] BILLS OF EXCHANGE AND. PROMISSORY NOTES. 219

witness for the plaintiff, as he stands indifferent ;1 but not
for the defendant, to prove illegality of consideration.? ‘The
maker is also a competent witness for the plaintiff, in an
action by the indorsee against the indorser But it seems,
that he is not competent for the defendant in such action, if
the note was made and indorsed for his own accommoda-
tion ; for a verdict for the plaintiff, in such case, would be
evidence against him.*

§ 205. The acceptor, or drawee of a bill, is also a com-
petent witness, in an action between the holder and the
drawer, to prove that he had no funds of the drawer in his
hands; for this evidence does not affect his liability to the
drawer® And even the declaration of the drawee to the
same effect, if made at the time of presentment and refusal
to accept the bill, is admissible, as primd facie evidence of
that fact, against the drawer.6 But it has been held, that a
joint acceptor is not competent to prove a set-off, in an ac-
tion by the holder against the drawer, because he is answer-
able to the latter for the amount which the plaintiff may
recover.’ Nor is he a competent witness for the drawer to
prove that he received it from the drawer to get it discounted,
and delivered it to the plaintiff for that purpose, but that the
plaintiff had not furnished the money; for being absolutely
bound, by his acceptance, to pay the bill, he is bound to
indemnify the drawer against the costs of the suit.®

 

1 York v. Blott; 5 M. & S. 71.

2 Slegg v. Phillips, 4 Ad. & El. 852.

3 Venning v. Shuttleworth, Bayley on Bills, 422, [536,] [593]; Fox v.
Whitney, 16 Mass. 118; Baker v. Briggs, 8 Pick. 122; Levi v. Essex, 2 Esp.
Dig. 707; Ante, Vol. 1, §§ 329, 400; Skelding v. Warren, 15 Johns. 270;
Taylor v. McCune, 1 Jones, 460.

4 Pierce v. Butler, 14 Mass. 303; Van Schaack v. Stafford, 12 Pick. 565 ;
Hubbly v. Brown, 16 Johns. 70.

5 Staples v. Okines, 1 Esp. 332; Legge v. Thorpe, 2 Campb. 310.

6 Prideaux v. Collier, 2 Stark. R. 57; Ante, Vol. 1, §§ 108, 109, 111, 118.

7 Mainwaring v. Mytton, 1 Stark. R. 83; Anée, Vol. 1, §401. Sed quere,
for it seems that the acceptor would be liable to the drawer for the whole
amount of the bill which he had not paid to the holder. Reid v. Furnival,
5C.& P. 499; 1 C. & M. 538, 8. C.; Johnson v. Kennison, 2 Wills, 262.

8 Edmonds v. Lowe, 8 B. & C. 407; 2M. & R. 427, 8. C.
220 LAW OF EVIDENCE. [PART IV.

§ 206. In an action by the indorsee against the drawer of
a bill, the payee is a competent witness to prove the consid-
eration for the indorsement.1 The payee of a note, who has
indorsed it without recourse, is also a competent witness to
prove its execution by the maker2 But where the note was
payable to the payee or bearer, the payee has been held
inadmissible to prove the signature of the maker, on the
ground that he was responsible, upon an implied guaranty,
that the signature was not forged

§ 207. In an action by the indorsee against the drawer or
acceptor, an indorser is, in general, a competent witness for
either party, as he stands indifferent between them.* But an
intermediate indorser of a bill is not a competent witness, in
a suit on the bill by a subsequent indorsee against a prior
indorser, to prove notice of its non-acceptance.® Thus, un-
der the general rule that the indorser, standing indifferent, is
a competent witness, he has been admitted to prove pay-
ment; °® time of negotiation by indorsement;7 alteration of
date by fraud;® want of interest in the indorsee;® usury;

 

1 Shuttleworth v. Stephens, 1 Campb. 407, 408.

2 Rice v. Stearns, 3 Mass. 225. Or, that the note had been fraudulently
altered; Parker v. Hanson, 7 Mass. 470; or, fraudulently circulated ; Wood-
hull v. Holmes, 10 Johns. 231.

3 Herrick v. Whitney, 15 Johns. 240; Shaver v. Ehle, 16 Johns. 201.

4 Richardson v. Allen, 2 Stark. R. 334; Stevens v. Lynch, 2 Campb. 332;
12 East, 38, S. C.; Birt v. Kershaw, 2 East, 458; Charrington v. Milner,
1 Peake’s Cas. 6; Reay v. Packwood, 7 Ad. & El. 917 ; Chitty & Hulme on
Bills, p. 674, (9th ed.) But see Barkins v. Wilson, 6 Cowen, 471. See fur-
ther, ante, Vol. 1, § 385, n., and § 399-.01.

5 Talbot v. Clark, 8 Pick. 51; Cropper v. Nelson, 3 Wash. 125. Buta
prior indorser has been held a competent witness, for the defendant, in an
action against a subsequent indorser. Hall v. Hale, 8 Conn. 336.

6 Warren v. Merry, 3 Mass. 27; White v. Kibling, 11 Johns. 128; Bryant
v. Rittorbush, 2 N. H. 212. So in Louisiana, if the indorser has not been
charged with notice. Bourg v. Bringier, 20 Martin, R. 507.

7 Baker v. Arnold, 1 Caines, 218; Baird v. Cochran, 4 S. & R. 3973
Smith v. Lovett, 11 Pick. 417.

8 Parker v. Hanson, 7 Mass. 470; Shamburg v. Commagere, 10 Martin,
R. 18.

9 Barker v. Prentiss, 6 Mass. 430; Maynard v. Nekervis, 9 Barr. 81.

10 Tuthill v. Davis, 20 Johns. 287; Tucker v. Wilamonicz, 3 Eng, 157.

‘
PART IV.] BILLS OF EXCHANGE AND PROMISSORY NOTES. 221

and the fact of his own indorsement.! So, to prove that the
claim, which the defendant insisted on by way of set-off, was
acquired by him after he had notice of the transfer of the
note to the plaintiff? And generally the payee, after having
indorsed the note, is competent to prove any matters arising
after the making of the note, which may affect the right of
the holder to recover against the maker.’

 

1 Richardson v. Allan, 2 Stark. R. 334.

2 Zeigler v. Gray, 12 S. & R. 42.

8 See the cases already cited in this action. Also, Powell v. Waters, 17
Johns. 176; McFadden v. Maxwell, Id. 188. In several of the United
States, all the parties liable on a bill or note may be sued in one action ; in
which case, however, the parties are respectively entitled to the testimony
of any other parties defendant in the suit, in the same manner as if they had
been sued in several actions. See Wisconsin, Rev. Stat. 1849, ch. 93, §§ 9,
19, 20; Michigan, Rev. Stat. 1846, ch. 99%, §§ 6, 12, 17.

19*
222 LAW OF EVIDENCE. [PART Iv.

CARRIERS.

§ 208. Tuere is no distinction, in regard to their duties
and liabilities, between carriers of goods by water and car-
riers by land, nor between carriers by ships,.steamboats, and
barges, and by railroad cars and wagons. The action against
a carrier in any of these modes, is usually in assumpsi¢ upon
the contract; and this is generally preferable, as the remedy
in this form survives against his executor*or administrator.
The declaration involves three points of fact, which the plain-
tiff must establish, upon the general issue; namely, the con-
tract; the delivery of the goods, or, in the case of a passen-
ger, his being in the carriage; and the defendant’s breach of
promise or duty. Carriers are also liable in trover, for the
goods, and in case, sounding in tort, for malfeasance or mis-
feasance; but although the remedy in tort is on some ac-
counts preferable to assumpsit, the form of action does not
very materially affect the evidence necessary to maintain it.

 

1 See 1 Chitty on Plead. 161, 162, (7th edit.) [125, 126]; Govett v. Rad-
nidge, 3 East, 70. [Trover will not lie against a common.carrier for non-
feasance only. Bowlin v. Nye, 10 Cush. 416 ; Collins v. Boston & M. R. R.
Ib. 610; Scoville v. Griffith, 2 Kernan, (N. Y.) 509. There must be a
previous demand. Robinson v. Austin, 2 Gray, 564. And where a car-
rier having no legal claim upon the goods except for the freight, refuses to
deliver them unless a farther sum should be first paid, the consignee is not
bound to tender the freight-money, and the carrier’s refusal to deliver, is
evidence of a conversion of them. Adams v. Clark, 9 Cush. 217; Rooke v.
Midland R. Co. 14 Eng. Law & Eq. 175. The receipt by the owner of the
whole number of casks of goods shipped, does not prevent him from main-
taining an action against the carrier for a loss of part of their contents, un-
less he receives the property as and for a compliance with the contract of
the carrier. Alden v. Pearson, 3 Gray, 342. A common earrier, who in-
nocently receives goods from a wrongdoer, without the consent of the
owner, express or implied, has no lien upon them for their carriage, as
against such owner. Robinson v. Baker, 5 Cush. 137; Fitch v. Newberry,
1 Doug. (Mich.) 1.]
PART Iv.]’ CARRIERS. 223

§ 209. In any form of action, the contract must be proved
as laid in the declaration! If the contract is stated as abso-
lute, proof of a contract in the alternative will not support
the allegation, even though the option has been determined ;?
neither will it be supported by proof of a contract containing
an exception from certain classes of liability ; as, for example,
that the carrier will not be responsible for losses by fire, perils
of the seas, or the like. But if the exception does not extend
to the obligation of the contract itself, but only affects the
damages to be recovered, the declaration may be general,
without any mention of the exception, the proof of which at
the trial will be no variance. Thus, where the action was
in the common form of assumpsit, and the evidence was, that
the carrier had given notice that he would not be accounta-
ble for a greater sum than £5 for goods unless they were
entered as such and paid for accordingly, the variance was
held immaterial! And if, in a like form of action by the
consignor of goods, the allegation is, that the consideration
or hire was to be paid by the plaintiff, and the evidence is,
that it was to be paid by the consignee, it is no variance ;- the
consignor being still in law liable. A variance between the
allegation and proof of the termini, will be fatal. But here,
the place, mentioned as the terminus, is to be taken in its
popular extent, and not strictly according to its corporate and

 

1 Treland v. Johnson, 1 Bing. N. C. 162; Bretherton v. Wood, 3 B. & B.
54; Max v. Roberts, 12 East, 89.

2 Penny v. Porter, 2 East, 2; Yate v. Willan, Id. 128; Ante, Vol. 1, §§ 58,
66; Hilt v. Campbell, 6 Greenl. 109, ;

3 Latham v. Rutley, 2 B. & C. 20. And see Smith v. Moore, 6 Greenl.
274; Ferguson v. Cappeau, 6 H. & J. 394.

4 Clark v. Gray, 6 East, 564.

5 Moore v. Wilson, 1 T. R. 659; Turney v. Wilson, 7 Yerg. 340; Moore
v. Sheridine, 2 H. & McH. 453. If the declaration is on a loss by negli-
gent carrying, it will not be supported by proof of a loss in the defendant’s
warehouse, before the goods were taken to the coach to be carried. Roskell
v. Waterhouse, 2 Stark. R. 461. In re Webb, 8 Taunt. 443; 2 Moore, 500,
8. C. .

6 Tucker v. Cracklin, 2 Stark. R. 385 ; [Fowles v. Great Western R. Co.
16 Eng. Law & Eq. 531.]

’
224 LAW OF EVIDENCE. [PART Iv.

legal limits ; and therefore an averment of a contract to carry
from London to Bath, is supported by evidence of a contract
to carry from Westminster to Bath. But in an action on
the case for non-delivery of goods, the terminus a quo is not
material?

§ 210. If the defendant is alleged and proved to be a
common carrier, the law itself supplies the proof of the con-
tract, so far as regards the extent or degree of his liability.
But if he is not a common carrier, the terms of his under-
taking must be proved by the plaintiff’ And in either case,
where there is an express contract, that alone must be relied
on, and no other can be implied’ If it appears that the
goods were delivered by the owner to one common carrier,
and that he, without the owner’s knowledge or authority,
delivered them over to another, to be carried, this evidence
will support an action brought directly against the latter,
with whom the contract will be deemed to have been made
through the agency of the former, ratified by bringing the
action.*

 

1 Beckford v. Crutwell, 1 M. & Rob. 187; 5 C. & P. 242, S. C.; Ditcham
v. Chivis, 4 Bing. 706 ; 1 M.& Payne, 735, 8. C. See also Burbige v. Jakes,
1B. & P. 225.

2 Woodward v. Booth, 7 B. & C. 301.

3 Robinson v. Dunmore, 2 B. & P. 416; 2 Steph. N. P. 994, 995.

4 Sanderson v. Lamberton, 6 Binn. 129. The declaration against a com-
mon cartier is as follows: —‘ For that whereas the said (defendant) on ——
was a common carrier of goods and chattels for hire, from to ; and
being such carrier, the plaintiff then, at the request of the said (defendant)
caused to be delivered to him certain goods of the plaintiff, to wit, [here
describe them], of the value of to be taken care of and safely and securely
conveyed by the said (defendant) as such carrier, from said to said ,
there to be safely and securely delivered by said (defendant) to the plaintiff,
(or, to , if the case is so,) for a certain reward to be paid to the said
(defendant) ; in consideration whereof the said (defendant) as such carrier,
then received said goods accordingly, and became bound by law and under-
took and promised the plaintiff to take care of said goods, and safely and
securely to carry and convey the same from said to , and there to
deliver the same safely and securely, to the plaintiff (or, to ——,) as afore-
said. Yet the said (defendant) did not take care of said goods, nor safely

 

 

 

 

 

 

 

 
PART Iv.] CARRIERS. 225

§ 211. The defendant is proved to be a common carrier,’
by evidence that he undertakes to carry for persons generally,

 

and securely carry and convey and deliver the same as aforesaid; but on
the contrary, the said (defendant) so negligently conducted and so mis-
behaved in regard to said goods in his said calling of common carrier, that by
reason thereof the said goods became and were wholly lost to the plaintiff.”

Against a private carrier, charged with the loss of goods by negligence,
the declaration in assumpsit is as follows : —

“ For that on —— in consideration that the plaintiff, at the request of the
said (defendant) had delivered to him certain goods and chattels, to wit, [here.
describe them], of the value of , to be safely conveyed by him from :
to , for a certain reward to be paid to the said (defendant), he the said
(defendant) promised the plaintiff to take good care of said goods, while he had
charge of the same, and with due care to convey the same, from to
aforesaid, and there safely to deliver the same to the plaintiff, (or, to —,
as the case may be.) Yet the said (defendant) did not take due care of said
goods while he had charge of the same as aforesaid, nor did he with due care,
convey and deliver the same as aforesaid, but on the contrary so carelessly
and improperly conducted in regard to said goods, that by reason thereof
they became and were wholly lost to the plaintiff.”

[A railroad corporation, receiving goods for transportation to a place situ-
ated beyond the line of its road, on another railroad which connects with its
own, (with which it has no connection in business,) bat taking pay for the
transportation over its own road only, is not liable, in the absence of any
special contract, for the loss of the goods, after their delivery within a rea-
sonable time to the other railroad. Nutting v. The Connecticut River R. R.:
Co. 1 Gray, 502. The facts of that case were these: The defendant, a rail-
road corporation, and a common carrier, received at Northampton, Mass.,
certain goods “for transportation to New York,” and within a reasonable
time delivered the same at Springfield, the southern terminus of its route,
to the New Haven, &c. railroad, with which the defendant's road there con-
nects, and took fear such road a receipt for the goods. The New Haven,
&c. road extends to New Haven and there connects with the New York, &e.
railroad, which extends to the city of New York. A loss occurred bowneed
Springfield, and New Haven for which the plaintiff brought his action. It
was the custom-of the defendant to receive goods at the various stations on its
line for transportation to New York, and to convey them in its own cars to
Springfield and there deliver them to the New Haven, &c. road, by whose
agents the goods were overhauled and checked. The goods were sometimes
carried over the New Haven, &c. road, without change of cars, and were
sometimes shifted to the cars of the New Haven, &e. hondl but ‘ie defend-
ant received pay only as far as Springfield. When goods were brought from
New York, to places on the line of the defendant’s road, they were brought
either in the defendant’s freight cars, or in those of the two other corpora-

 

 

 

 

 
226 LAW OF EVIDENCE. [Parr Iv.

exercising it as a public employment, and holding himself
out as ready to engage in the transportation of money or

 

tions above named, or in those of still another corporation which connected
with the defendant’s road at its northern terminus. Upon the above facts,
the Court held that the plaintiff could not maintain his action. Ibid. See
also Van Santvoord v. St. John, 6 Hill, 157, reversing the decision of the
Supreme Court in St. John v. Van Santvoord, 25 Wend. 660, and explaining
Weed v. Saratoga & S. R. R. 19 Wend. 534; Hood v. New York & N. H.
R. R. Co. 22 Conn. 1; Elmore v. Naugatuck R-R. Co. 23 Ib. 457; Farmers
& Mech. Bank », Champlain Transportation Co. 16 Verm. 52; 18 Ib. 140;
23 Ib. 209, 214, and note by Redfield, J. Where the first company gave
a ticket and took pay through, it has been held to be responsible throughout
the entire route. Bennett v. Filyaw, 1 Florida, 403; 19 Wend. 534. See
also Noyes v. Rutland & B. R. R. Co. 1 Williams, (Vt.) 110.

In England it has been held that when a railway company takes into its
care a parcel directed toa particular place, and does not by positive agree-
ment limit its liability to a part only of the distance, it is prima facie evi-
dence of an undertaking to carry the parcel to the place to which it is
directed, although that place be beyond the limits within which the com-
pany, in general, professes to carry on its business as a carrier. Muschamp
v. Lancaster & P. J. Railway, 8 M. & W. 421. This decision was followed
in Watson v. Ambergate, N. & B. Railway, 3 Eng. Law & Eq. R. 497. See
also Scotthorn v. South Staff. R. Co. 18 Ib. 553. But this view of the law
is expressly dissented from in the above-cited cases in 1 Gray; 6 Hill; 18
Verm. and 22 Conn.

Where it is the general custom of a carrier to forward by sailing vessels
all goods destined for points beyond the end of his line, he is not liable for
not forwarding a particular article by asteam-vessel, unless the direction to
do so is clear and unambiguous. Simkins v. Norwich, &c. Steamboat Co.
11 Cush. 102.

_ A railroad company, as a common carrier of merchandise, is responsible
as a common carrier, until the goods are removed from the cars at the place
of delivery, and placed on the platform. If for any reason they cannot then
be delivered, or if, for any reason, the consignee is not there ready to re-
ceive them, it is the duty of the company to store them and preserve them
safely under the charge of competent and faithful servants, ready to be de-
livered, and actually to deliver them when duly called for by the parties
authorized to receive them. For the performance of these duties, after the
goods are delivered from the cars, the company is liable as a warchouse-man,
or as a keeper of goods for hire. Thomas v, Boston & Prov. R. R. 10 Met.
472; Norway Plains Co. v. Boston and M. R. R.1 Gray, 268; Gibson »v.
Culver, 17 Wend. 305; Miller v. Steam, &c. Co. 13 Barb. 361. See also
Garside v. Trent & Mers. Nav. 4 T. R. 581; Hyde o. Same, 5 Ib. 389;
Webb's case, 8 Taunt. 443.
PART IV.] CARRIERS. 227

goods for hire, as a business, and not as a casual occupation.
This description includes both carriers by“land and by water;
namely, proprietors of stage wagons, coaches, and railroad
cars, truckmen, wagoners, teamsters, cartmen, and porters; as
well as owners and masters of ships and steamboats, carrying
on general freight, and lightermen, hoymen, barge-owners,
ferrymen, canal-boatmen, and others, employed in like man-
ner“ But hackney-coachmen, -and others, whose employ-
ment is solely to carry passengers, are not regarded as com-
mon carriers in respect of the persons of the passengers, but
only as to their baggage, and the parcels which they are
in the practice of conveying.? Nor is evidence that the de-
fendant kept a booking-office for a considerable number of
coaches and wagons, sufficient of itself to prove him a com-
mon carrier.*

 

A railroad corporation contracting to transport flour and deliver it ‘‘ on
board” at D., are liable as common carriers for its loss by fire in their
warehouses at D., before final delivery ‘‘on board.” Moore v. Michigan C.
R. Co. 3 Mich. (Gibbs,) 23.

It seems that a railroad corporation is not obliged to give notice to the
consignees of the arrival of goods, transported by them, in order 1o exonerate
themselves from their liability as common carriers. Norway Plains Co. v.
Boston & M. R. R. 1 Gray, 263. But see Michigan Cent. R. R. v. Ward,
2 Mich. (Gibbs,) 538; Goold v. Chapin, 10 Barb. 612; 13 Barb. 361.]

1 Story on Bailm. § 495; [Fuller v. Bradley, 25 Penn. State R. (1 Casey,)
120; Russell v. Livingston, 19 Barb. 346.]

2 Story on Bailm, §§ 496, 497.

3 Story on Bail. §§ 498, 499, 590-604. [Express-men who forward goods
for hire from place to place, in conveyances owned by others, are not liable
as common carriers, but as bailees for hire to forward goods by the ordinary
modes of conveyance. Hersfield v. Adams, 19 Barb. 577.]

4 Upston v. Slark, 2 C. & P. 598. [A keeper of a public-house in the
neighborhood of a railway station gave public notice that he would furnish
a free conveyance to and from the cars to all passengers with their baggage,
travelling thereby, who should come to his house as guests, and for this pur-
pose employed the proprietors of certain carriages to take allsuch passengers
free of charge to them, and to convey them and their baggage to his house.
A traveller by the cars, to whom this arrangement was known, employed
one of the carrjages thus provided to take him and his baggage to such °
public-house, and his baggage was lost or stolen on the way, through a want
of due care or skill on the part of the proprietor of the carriage or his driver,
and the keeper of the house was held liable therefor, either as an innkeeper
228 LAW OF EVIDENCE. [PART Iv.

§ 212. The contract must also appear to have been made
with the plaintiff &nd by the defendant. If, therefore, the
goods were sent by the vendor to the vendee, at the risk of
the latter, the contract of the carrier is with the vendee,
whose agent he becomes by receiving the goods, and who
alone is entitled to sue; unless the vendor expressly contracted
with the carrier, in his own behalf, for the payment of the
freight ; or the property was not to pass to the vendee until
the goods reached his hands; in which case the vendor is
the proper plaintiff! If goods are ordered by the vendee, but
no order at all is given in regard to sending them; and yet
the vendor sends them by a common carrier, by whom they
are lost; the carrier in such case is the agent of the vendor
alone, and the action for the loss is maintainable by him
- only.2, So, where the goods were obtained of the vendor by
a pretended purchase, by a swindler, who got possession of
them by the negligence of the carrier; as no property had
legally passed to the consignee, the carrier’s implied contract
was held to be with the vendor alone? If the transaction
was had with the mere servant of the carrier, such asa driver,
or porter, the contract is legally made with the master; un-
less the servant expressly undertook to carry the parcel on
his own account; in which case he is liable* And it is
sufficient if the goods were delivered to a person, and ata

 

or as a common carrier, it being immaterial which. Dickinson v. Winches-
ter, 4 Cush. 114.]

1 Dawes v. Peck, 8 T. R. 330,332; Hart v. Sattley, 3 Campb. 528 ; Moore
v. Wilson, 1 T. R. 659; Davis v. James, 5 Burr, 2680; Sargent v. Morris,
3 B. & Ald. 277. ;

2 Coats v. Chaplin, 3 Ad. & El. 483, N.S. And see Freeman ». Birch,
Id. 491, n.

3 Duff v. Budd, 3 B. & B. 177; Stephenson v. Hart, 4 Bing. 476.

4 Williams v. Cranston, 2 Stark. R. 82. [Where the bailee of property
delivers it to a common carrier for transportation, either the bailee or the
bailor, may maintain an action against the carrier for its loss. Elkins v.
Boston and Maine R. R. 19 N. H. 387. Moran v. Portland, &e. Co.
35 Maine, 55. A servant, travelling with his master on a railway, may have
an action in his own name, against the railway company for the loss of his
luggage, although the master took and paid for his ticket. Marshall v.
York, &c. Railway Co. 7 Eng. Law & Eq. 519.]
PART IV.] CARRIERS. 229

house where parcels were in the habit of being left for the
carrier.! :

§ 213. If a receipt was given for the goods, it should be
produced ; and notice should be given to the defendant to
produce his book of entries, and way-bill, if any, in order to
show a delivery of the goods to him. The plaintiff should
also prove what orders were given at the time of delivery, as
to the carriage of the goods, and the direction written upon
the package? If the loss or non-delivery of the goods is
alleged, the plaintiff must give some evidence in support of
the allegation, notwithstanding its negative character. And
in proof of the loss, the declaration of the defendant’s coach-
man or driver, in answer to an inquiry made of him for the
goods, is competent evidence for the plaintiff5 In proof of
the contents of a lost trunk or box, it has been held that the

 

1 Burrell v. North, 2 C. & K. 681. [See also Mayall v. Boston & Maine
R. R.19 N. H. 122. The common hands, or crew, of a vessel have no gen-
eral authority, as agents of the owners, to receive goods. Trowbridge v.
Chapin, 23 Conn. 595; 20 Conn. 354; and when common carriers advertise
that a faithful special messenger is sent in charge of each express, this is
not evidence that the messenger has authority to receive freight. Thurman
v. Wells, 18 Barb. (N. Y.) 500.

, The deposit of a trunk in the usual place for passengers’ baggage on a
steamboat, is not a sufficient delivery, unless the owner of the trunk ake|
passage also. Wright v. Caldwell, 3 Mich. (Gibbs,) 51. If a common car-
rier receives goods into his own warehouse for the accommodation of him-
self and his customers, so that the deposit there is a mere accessory to the
carriage and for the purpose of facilitating it, his liability, as a common car-
rier, begins with the receipt of the goods. Clarke v. Needles, 25 Penn.
State R. (1 Casey,) 338. See Maybin v. Railroad Co. 8 Rich. (8. C.)
240.]

2 Where there are several owners, but the receipt mentions some of them
only, it is still admissible evidence for them all, accompanied by proof of title
in them all. Day v. Ridley, 16 Verm. R. (1 Washb.) 48.

3 2 Stark. Kv. 200. .

4 Tucker v. Cracklin, 2 Stark. R. 385; Griffith ». Lee,1 C. & P. 110;
Day v. Ridley, 1 Washb. 48 ; [Woodbury v. Frink, 14 Ill. 279.7

5 Maybew v. Nelson, 6 C. & P. 58. But proof of a loss will not alone
support a count in trover. Ross v. Johnson, 5 Burr, 2825.

VOL. II. 20

 
230 LAW OF EVIDENCE. [PART Iv.

plaintiff's own affidavit is admissible, where the case, from
its nature, furnishes no better evidence.!

§ 214. If several are jointly interested in the profits of a
coach or wagon, whether it be owned by one or all, they are
jointly liable, though, by agreement among themselves, one
finds the horses and driver for one part of the road only, and
another for another? If the declaration is in asswmpsit, a
joint contract by all the defendants must be proved, by evi-
dence of their joint ownership, or otherwise. And if the
action is in fort, setting forth the contract, the contract itself
must be proved as laid; though, where the action is founded
on a breach of Common Law duty, which is a misfeasance,
and is several in its nature, as in an action against common
carriers, upon the custom, judgment may be rendered against
some only and not all of the defendants.3 :

§ 215. It is now well settled, that a common carrier may
qualify his liability by a general notice to all who may em-
ploy him, of any reasonable requisition to be observed on
their part, in regard to the manner of delivery and entry of
parcels, and the information to be given to him of their con-
tents, the rates of freight, and the like; as, for example, that
he will not be responsible for goods above the value of a
certain sum, unless they are entered as such, and paid for

‘

1 See ante, Vol. 1, § 348; David v. Moore, 2 Watts & Serg. 230. And
see Butler v. Basing, 2 C. & P. 613; [Dibble v. Brown, 12 Geo. 217; Mad
River, &c. Railroad v. Fulton, 20 Ohio, 318]. In Clark v. Spence, 10
Watts, 335, it was thought by Rogers, J., that this rule applied with peculiar
force to wearing apparel, and other articles convenient for a traveller, which
in most cases are packed by the party himself, in his own trunk, and which
would therefore admit of no other proof. But it has been decided, in a
recent case against a railroad company, for the loss of a traveller’s trunk,
that the plaintiff could not be a witness. Snow v. Eastern R. R. Co. 12
Met. 44.

2 Waland v. Elkins, 1 Stark. R. 272; Fromont v. Coupland, 2 Bing.
170. And see Barton v. Hanson, 2 Taunt. 49; Helsby v. Meers, 5 B. & C.
504.

3 Bretherton v. Wood, 3 B. & S. 54; Bank of Orange v. Brown, 3 Wend.
158. See ante, Vol. 1, § 64. ;
PART IV.] CARRIERS. 231

accordingly. But the right of a common carrier, by a gen-
eral notice, to limit, restrict, or avoid the liability devolved on
him by the Common Law on the most salutary grounds of
public policy, has been denied in several of the American
Courts, after the most elaborate consideration ;! and there-
fore a public notice by stage-coach proprietors, that “all bag-
gage” was “atthe risk of the owners,” though the notice
was brought home to the plaintiff, has been held not to release
them from their liability as common carriers2 Nor does such
a notice apply at all to goods not belonging to any pas-
senger in the coach.? But in other American Courts it is
held, that such limitations, under proper qualifications and
safeguards for securing due notice to the traveller, or the
party for whom the goods are to be transported, may be
operative and binding on the parties.

 

1 But it is admitted in England. See Austin v. The Manchester, &c.
Railw. Co. 16 Jur. 763; 11 Eng. Law & Eq. R. 506; Carr v. The Lancashire
& Yorkshire Railw. Co. 7 Exch. R. 707; 21 Law J. Exch. 261; 6 Monthly
Law R. 222; 14 Eng. Law & Eq. R. 340.

2 Hollister v. Newlen, 19 Wend. 234; Cole v. Goodwin, Ib. 251; Jones v.
Voorhees, 10 Ohio R. 145; Story on Bailm. § 554, (2d edit.) note; Fisk
v. Chapman, 2 Kelly, 349; Sager v. The Portsmouth Railr. Co. 1 Redingt:
228; [Kimball v. Rutland R. R. 26 Verm. 247; Farmers’ &c. Bank v.
Champlain Trans. Co. 23 Ib. 186 ; Dorr v. New Jersey, &c. Co. 1 Kernan,
(N. Y.) 485; Coxe v. Heisley, 19 Penn. (7 Harris,) 243; Davidson v. Gra-
ham, 2 Ohio, (N. 8.) 131.] The right of a common carrier in England to
limit or affect his liability at Common Law, is now restricted by Stat. 11
Geo. 4, & 1 W. 4, ch. 68, to certain enufferated articles, exceeding £10 in
value, the, nature and value of which must be declared at the time of de-
livery, and an increased charge paid or engaged ; the notice to that effect
to be conspicuously posted up in the receiving-house, which shall conclu-
sively bind the parties sending without further proof of its having come to
their knowledge. But this statute, it seems, does not protect the carrier
from the consequences of his own gross negligence. Owen v. Burnett, 2 C.
& M. 353.

3 Dwight v. Brewster, 1 Pick. 50. And see Camden & Amboy Railroad
Co. »v. Burke, 13 Wend. 611. But a special contract may, always be shown
by the carrier, in avoidance of his general liability. Chippendale v. The
Lancashire, &c. Railway Co. 15 Jur. 1106; Story on Bailments, § 549.

4 Brown v. The Eastern Railroad Co., S. J. C. Mass., March, 1853, 6
Monthly Law Rep. 217; [11 Cush. 99. This point, if conceded, was not
232 LAW OF EVIDENCE. [PART Iv.

§ 216. But in every case of public notice, the burden of
proof is on the carrier, to show that the person with whom
he deals, is fully informed of its tenor and extent. And
therefore, if any advertisement is posted up, emblazoning in

| large letters the advantages of the conveyance, but stating

the limit of his liability in small characters, at the bottom, it
is not sufficient.2, It must be in such characters and situa-
tion, that a person delivering goods at the place could not
fail to read it, without gross negligence; and even then, it
affects only those whose goods are received at that place ;
for if received at a distance from the carrier’s office, though
at an intermediate point between the termini of his route, he
must prove notice to the owner through some other medium.
And in an action against a carrier, the defendant must satisfy
the Jury, that the notice was actually communicated to the
plaintiff. Ifit was posted up, or advertised in a newspaper,
it must appear that he read it. In the latter case, the adver-
tisement affords no ground for an inference of notice, unless
it be proved that the plaintiff was in the habit of taking or
reading the newspaper, in which it was inserted; and even

~ then, the Jury are not bound to find the fact. In the case of

 

decided in this case.] And see Bingham vc. Rogers, 6 Watts & Serg. 495;
Laing v. Colder, 8 Barr, 484; Swindler v. Hilliard, 2 Rich. 286.

1 Butler v. Heane, 2 Campb. 415, per Ld. Ellenborough; Kerr v. Willan,
2 Stark. R. 53; Macklin v. Waterhouse, 5 Bing. 212.

2 Butler v. Heane, 2 Campb. 415, per Ld. Ellenborough; Kerr v. Willan,
2 Stark. R. 53; Macklin v. Watefffouse, 5 Bing. 212. [A notice in the Eng-
lish language, to a German, ignorant of the English language, is not sufli-
cient. Camden & Amboy R. R. v. Baldauf, 4 Harris, 67. A notice that a
railroad corporation “ will not be liable for baggage of passengers beyond a
certain amount, unless, &c.” printed on the back of the passage ticket, and
detached frem what ordinarily contains all that is material to the passenger
to know, does not raise a legal presumption that the party at the time of
receiving the ticket and before the train leaves the station, had knowledge of
such limitations and conditions. It is a question for the Jury whether the
plaintiff knew of the notice before commencing the journey. Brown v. East-
ern R. R. 11 Cush. 97.]

3 Clayton v. Hunt, 8 Campb. 27; Gouger v. Jolly, Holt’s Cas, 317.

4 Rowley v. Horne, 3 Bing. 2; 10 Moore, 247; Leeson v. Holt, 1 Stark,
R. 186.
PART IV.] CARRIERS. 233

notice posted up in the carrier’s office, proof that the plain-
tiff’s servant, who brought the goods, looked at the board on
which the notice was painted, is not sufficient, if the servant
himself testifies that he did not read it.

§ 217. Where there are several notices, the carrier must
take care that they are all of the same tenor; for if they dif-
fer from each other, he will be bound by that which is least
favorable to himself.”

§ 218. If such notice is proved by the carrier, and brought
home to the knowledge of the plaintiff, its effect may be
avoided by evidence on the part of the plaintiff, that the loss
was occasioned by the malfeasance, misfeasance, or negli-
gence, of the carrier or his servants; for the terms are uni-
formly construed not to exempt him from such losses.
Thus, if he converts the goods to a wrong use, or delivers
them to the wrong person, he is liable, notwithstanding such
notice. So, though. there be notice by a passenger-carrier,
that “ all baggage is at the risk of the owner,” he will still be
liable for any loss occasioned to the baggage by a culpable
defect in the vehicle.6 The effect of the notice may also be
avoided by proof of a waiver of it, on the part of the carrier ;
as, if he is informed of the value of the parcel, and is desired

 

1 Kerr v. Willan, 2 Stark. R. 53; 6 M. & S.. 150; Davis ». Willan, 2
Stark. R. 279. The printed conditions of a line of public coaches are suffi-
ciently made known to passengers by being posted up, in conspicuous char-
acters, at the place where they book their names. And where the handbill,
containing such conditions, had been posted up four years before, and could
not now be found, parol evidence of its contents was held admissible. White-
sell v. Crane, 8 W. & S. 369. i

2 Munn »v. Baker, 2 Stark. R. 256; Cobden v. Bolton, 2 Campb. 108;"
Gouger v. Jolly, Holt’s Cas. 317 ; Story on Bailm. § 558.

3 Story on Bailm. §§ 570, 571, (8d ed.); Wild »v. Pickford, 8 M. & W.
461; Newborn». Just, 2C. & P. 76.

4 Ibid.; Wild v. Pickford, 8 M. & W. 443; Hawkins v. Hoffman, 6 Hill,
(WN. Y.) R. 586.

5 Camden & Amboy Railroad Co. v. Burke, 13 Wend. 611, 627, 628;
Story on Bailm. § 571 a.

20 *
a

234 LAW OF EVIDENCE. [PART IV.

to charge what he pleases, which shall be paid if the parcel
is taken care of; and he charges only the ordinary freight ;*
or, if he expressly undertakes to carry a parcel of more than
the limited value, for a specified compensation.? But in all
such cases of notice, the burden of proof of the negligence,
malfeasance, or misfeasance, or of the waiver, is on the party
who sent the goods.8

§ 219. It is ordinarily a good defence for a private carrier,
that the loss or injury to the goods was occasioned by inev-
itable accident; but a common carrier is responsible for all
losses and damages, except those caused by the act of God,

or by public enemies. By the act of God, is meant a natural

necessity, which could not have been occasioned by the inter-
vention of man, but proceeds from physical causes alone;
such as, the violence of the winds or seas, lightning, or other
natural accident.t Therefore, if the loss happened by the
wrongful act of a third person; °® or, by an accidental fire, not
caused by lightning;® or, by the agency of the propelling
power in a steamship ;’ or, by striking against the mast of
a sunken vessel, carelessly left floating ;* or, by mistaking a

 

1 Story on Bailm. 572; Wilson v. Freeman, 5 Campb. 527. In this case,
however, the carrier declared his intention to charge at a higher rate than
for ordinary goods.

2 Helsby v. Mears, 5 B. & C. 564. Mere notice of the value of the parcel,
is not of itself sufficient to do away the effect of the general notice. Levi v.
Waterhouse, 1 Price, 280.

3 Harris v. Packwood, 3 Taunt. 264; Marsh v. Horne, 5 B. & C. 322.

4 Per Ld. Mansfield, in Forward v. Pittard, 1 T. R. 27; Story on Bailm.
§§ 25, 511; Propr’s Trent Nav. v. Wood, 3 Esp. 127, 131; Gordon v. Little,
8 S. & R. 553, 557; Colt v. McMechen, 6 Johns. 160; Hodgdon v. Dex-
ter, 1 Cranch, 360; Abbott on Shipping, p. 250; 1 Bell, Comm. 489,

5 8 Esp. 181, per Ashhurst, J.

6 Hyde v. Trent and Mersey Nav. Co. 5 T. R. 887; Forward v. Pittard,
1 T. R. 27.

7 Hale v. The New Jersey Steam Nav. Co. 15 Conn: R. 539.

8 Smith v. Shepherd, Abbott on Shipping, pp. 252, 253. The owner of a
vessel sunk while in his possession, so as to obstruct a public navigable river,
who has without any wrongful act relinquished the possession, is not, in all
cases, and for an indefinite time, bound to give notice, or take other means,
PART IV.] CARRIERS. 235

light ; the carrier is liable And if divers causes concur in
the loss, the act of God being one, but not the proximate _
cause, it does not discharge the carrier.2 But where the loss

was occasioned by the vessel being driven against a bridge,
by a sudden gust of wind ;8 or, by a collision at sea, without
fault ;* or, by being uffset in a sudden squall;® or, by the
vessel getting aground by a sudden failure of wind while
tacking ;° or, by striking against a sunken rock, or snag, un-
known to pilots;’ in these and the like cases, the carrier, if
he is not in fault,’ has been held not liable. In regard to
losses occasioned by force, it must have been the act of public

 

to prevent damage from coming thereby to other vessels; though it seems
there may be circumstances in which the owner, even after a blameless re-
linquishment of the possession, may still be required to take care that other
vessels be not injured by striking against a sunken vessel. Brown v. Mal-
lett, 12 Jur. 204. Queere, therefore, whether, if the owner has abandoned
the possession and property, and taken all due care, but nevertheless a car-
rier vessel is lost by striking upon the sunken one, it is the act of God, or
not. See 3 Am. Law Journ. 221,N. S.

1 McArthur v. Sears, 21 Wend. 190.

2 Ewart v. Street, 2 Bailey, R. 157; Richards v. Gilbert, 5 Day, R. 415;
Campbell v. Morse, 1 Harper’s Law R. 468; Hahn v. Corbett, 2 Bing. 205.
And see Gordon ». Little, 8 S. & R. 533; Hart v. Allen, 2 Watts, 114;
Jones v. Pitcher, 3 Stew. & Port. 185; Sprowl v. Kellar, 4 Stew. & Port.
382 ; [New Brunswick Co. v. Tiers, 4 Zabr. (N. a) 697.]

3 Aas v. Stephens, 1 Stra. 128.

4 Buller v. Fisher, Peake, Add. Cas. 183.

5 Spencer v. Daggett, 2 Verm. R. 92. So, if thrown over in a storm,
for preservation of the ship and passengers. Smith v. Wright, 1 Caines, R.
43.

6 Colt v. McMechen, 6 Johns. 160.

7 Williams v. Grant, 1 Conn. R. 487; Smyrl v. Niolon, 2 Bailey, R. 421 ;
Turner v. Wilson, 7 Yerger, R. 840; Baker v. The Hibernia, 4 Am. Jur. 1,,
N.S. [Where a violent storm caused an usually low tide, and the car-
rier’s barge, lying at the pier which he used, was pierced by a projecting
timber, covered at ordinary tides, and not known by the carrier to exist, he
was held liable, although his individual negligence in leaving his barge there
would not have produced the injury, without the concurrence of the act of
God and the negligence of the wharf builder. New Brunswick Co. v.
Tiers, 4 Zabr. (N. J.) 697. See also Friend v. Woods, 6 Gratt. 189.]

8 Williams v. Bransen, 1 Murph. 417; Spencer v. Daggett, 2 Verm. 92;
Marsh v. Blythe, 1 McCord, 360.
236 LAW OF EVIDENCE. [PART Iv.

enemies ; for if the goods were taken by robbers, or destroyed

_ by a mob, though by force which he could not resist, a com-

mon carrier is held responsible for the loss.!. In all cases of
loss by a common carrier, the burden of proof is on him, to
show that the loss was occasioned by the act of God, or by
public enemies.2. And if the accepf&ance of the goods was
special, the burden of proof is still on the carrier, to show,
not only that the cause of the loss was within the terms of
the exception, but also that there was on ‘his part no negli-
gence or want of due care. Thus, where goods were received
on board a steamboat, and the bill of lading contained an
exception of “the dangers of the river,” and the loss was
occasioned by the boat’s striking on a sunken rock; it was
held incumbent on the carrier to prove that due diligence and
proper skill were used to avoid the accident.4

§ 220. A carrier may repel the charge of the plaintiff, by

 

1 3 Esq. 131, 132, per Lord Mansfield, and Buller, J.

2 Murphy v. Staton, 3 Munf. 239; Bell v. Reed, 4 Binn. 127; Ewart v.
Street, 2 Bailey, 157. [Proof of delivery of goods to a common carrier,
and of a demand and refusal of the goods, or of such loss of goods as ren-
ders a demand useless, throws the burden of proof on the carrier to show
that the loss of goods happened by causes for which he is not liable. Alden
v. Pearson, 3 Gray, 342. So if he fails to deliver goods intrusted to him
within a reasonable time, he is liable for the damage caused by the delay,
unless he shows there is no negligence on his part. Nettles v. Railroad Co.
7 Rich. (8. C.) 190.]

3 Swindler v. Hilliard, 2 Rich. R. 286; [Hunt v. The Cleland: 6 Mc-
Lean, 76; The Peytona, 2 Curtis, C. C. 21; Bissel v. Price, 16 IIL
408.]

4 Whiteside v. Russell, 8 W.& S. 44. And see Slocum »v. Fairchild, 7
Hill, (N. ¥.) Rep. 292. [Where goods were received on board a steam-
packet, and the bill of lading contained an exception of “ robbers,” and the
goods were, stolen without violence, the loss was held not to be within the
exception. De Rothschild v. Royal Mail, &., Co. 14 Eng. Law & Eq. 327.
Damage by rats does not come within the exception of “dangers of the
sea or navigation.” Laveroni v. Drury, 16 Ib. 510, and note. The re-
sponsibility of a common carrier lasts until that of some other party be-
gins, and he must show an actual, or legal constructive delivery to the owner,
or consignee, or warehouse-man for storage; and the burden of proof is on
PART IV.] CARRIERS. 237

evidence of fraud in the plaintiff himself, in regard to the
goods ; or by proof, that the loss resulted from the negligence
of the plaintiff in regard to their packing or delivery; or from
internal defect without his fault.1_ Thus, where the plaintift
had just grounds. to apprehend the seizure of his goods by
rioters, which he concealed from the carrier when the goods
were received by him for transportation, and they were seized
and lost, it was held that the plaintiff was not entitled to
recover So, where a parcel, containing two hundred sov-
ereigns, was enclosed in a package of tea, and paid for as of ,
ordinary value, and it was stolen ; it was held, that the carrier
was not liable? And where the plaintiff being a bailee of
goods to be booked and conveyed by the coach in which he
was a passenger, placed them in his own bag, which was
lost, it was held that the loss was not chargeable to the car-
rier, but was imputable to the plaintiff’s own misfeasance.!
And if the injury is caused partly by the negligence of the
plaintiff, and partly by that of the defendant, or of some
other person, it seems that the plaintiff cannot maintain the
action; unless, perhaps, in case where, by ordinary care,
he could not have avoided the consequence of the defend-
ant’s negligence.6 The question of unfair or improper con-

 

q
the carrier to show by some open act of delivery, that he has changed his
liability to that of warehouse-man. Chicago, &c. R. R. Co. v. Warren, 16
Ill. 502; The Peytona, 2 Curtis, C. C. 21.]

1 Story on Bailm. §§ 563, 565, 566, 576; Leech v. Baldwin, 5 Watts, 446 ;
[Clark v. Barnwell, 12 How. U.S. 272; Rich v. Lambert, Ib. 347.]

2 Edwards v. Sharratt, 1 East, 604.

3 Bradley v. Waterhouse, 1 M. & Malk. 154; 3 C. & P. 318, S.C. See.
also Bull. N. P. 71. The owner, ordinarily, is not obliged to state the value
of a package, unless inquiry is made by the carrier; but if, being asked, he |
deceives’the carrier, the latter, though a common carrier, is not liable with-
out his own default. Phillips v. Earle, 8 Pick. 182.

4 Miles v. Cattle, 6 Bing. 743.

5 Williams v. Holland, 6 C. & P. 23; Pluckwell v. Wilson, 5 C. & P. 375;
Hawkins v. Cooper, 8 C. & P. 473; Davies v. Mann, 10 M.& W. 546; Smith
v. Smith, 2 Pick. 621; White v. The Winnissimmet Co. 5 Monthly Law
Rep. 203; [8 Cush. 155; Willoughby v. Horridge, 16 Eng. Law & Eq.
437.]
238 LAW OF EVIDENCE. [PART Iv.

duct in the plaintiff, in these cases, is left to the determina-
tion of the Jury.!

§ 221. Carrinrs OF PaSSENGERS are not held responsible
to the same extent with common carriers, except in regard
to the baggage.” But they are bound to the utmost care and

 

1 Batson v. Donovan, 4 B. & Ald. 21. And see Mayhew v. Eames, 3 B.
& C. 601; 1 C.& P. 550, S. C.; Clay v. Willan, 1 H. Bl 298; Izett v.
Mountain, 4 East, 370.

2 Whether a large sum of money, in an ordinary travelling trunk, will be
considered as baggage, beyond an ordinary amount of travelling expenses,
quere ; and see Orange Co. Bank v. Brown, 9 Wend. 85. In a later case it
was thought, that the term “baggage” does not include even money for
travelling expenses; but this was not the point in judgment. It was trover
against the owner of a steamboat, as a common carrier of passengers, for the
loss of one of the plaintiff’s two trunks, containing samples of merchandise,
carried as part of his personal baggage, by the plaintiff’s travelling agent.
The Court held, that the carrier was not liable on that ground; the learned
Judge expressing himself as follows: “ Although I do not find it stated in
the case that Mason, (the agent,) paid anything to the boat-owner, either for
freight or passage, yet the whole argument on both sides went upon the
ground that he had -paid the usual fare of a passenger, and nothing more ;
that he neither paid, nor intended to pay anything for the trunk; but de-
signed to have the same pass as his baggage. It was formerly held, that the
owner of the boat or vehicle was not answerable as a carrier for the luggage
of the passenger, unless a distinct price was paid for it. But it is now held,
that the carrying of the baggage is included in the principal contract in rela-
tion to the passenger ; and the carrier is answerable for the loss of the prop-
erty, although there was no separate agreement concerning it. A contract
to carry the ordinary luggage of the passenger is implied from the usual
course of the business ; and the price paid for fare is considered as including
a compensation for carrying the freight. But this implied undertaking has
never been extended beyond ordinary baggage, or such things as a traveller
usually carries with him for his personal convenience in the journey. It
neither includes money nor merchandise. Orange Co. Bank v. Brown, 9
Wend. 85; Pardee v. Drew, 25 Wend. 459. It was suggested in the first
case that money to pay travelling expenses might perhaps be included. But
that may, I think, be doubted. Men usually carry money to pay travelling
expenses about their persons, and not in their trunks or boxes; antl no con-
tract can be implied beyond such things as are usually carried as baggage.
It is going far enough to imply an agreement to carry freight of any kind, from
a contract to carry the passenger; for the agreement which is implied is much
more onerous than the one which is expressed. The carrier is only answer-
PART IV.] CARRIERS. 239

diligence of very cautious persons; and of course they are

able for an injury to the passenger, where there has been some want of care |
or skill; but he must answer for the loss of the goods, though it happened
without his fault. Still an agreement to carry ordinary baggage may well
be implied from the usual course of business; but the implication cannot be
extended a single step beyond such things as the traveller usually has with
him as a part of his luggage. It is undoubtedly difficult to define with accu-
racy what shall be deemed baggage within the rule of the carrier’s liability.
Ido not intend to say that the articles must be such as every man deems
essential to his comfort ; for some men carry nothing, or very little with them
when they travel, while others consult their convenience by carrying many
things. Nor do I intend to say that the rule is confined to wearing apparel,
brushes, razors, writing apparatus, and the like, which most persons deem
indispensable. If one has books for bis instruction or amusement by the way,
or carries his gun or fishing-tackle, they would undoubtedly fall within the
term baggage, because they are usually carried as such. This is, I think, a
good test for determining what things fall within the rule.

“In this case, the plaintiff sent out Mason as his ‘ traveller’ or agent, to

seek purchasers for his goods, and the trunk in question contained samples , .

of the merchandise which he wished to sell. The samples were not carried
for the personal use, convenience, instruction, or amusement of the passenger
in his journey, but for the purpose of enabling him to make bargains in the
way of trade. Although the samples were not themselves to be sold, they
were used for the sole purpose of carrying on traffic as a merchant. They
were not baggage, within the common acceptation of the term; and as they
were not shipped or carried as freight, the Judge was right in holding that
the plaintiff could not recover.” Hawkins v. Hoffman, 6 Hill’s (N. Y.) Rep.
586. Sed quere, whether. prudent travellers do not ordinarily carry part of
their necessary funds in the trunk.

In regard to the luggage of passengers, it is held that the carrier is bound ,
to deliver it to the passenger at the end of the journey, though it may be in |
the same carriage with the passenger, and under his personal care ; and that
if the usual course of delivery is at a particular spot, that is the place of |
delivery. Richards v. The London and 8S. Coast Railw. Co. 7M. G. & S.
839. “It is sufficient for the plaintiff to prove that the luggage was in the
carriage, and its non-delivery at the end of the journey. Ibid. Crouch v.
The London and N. W. Railw. Co. 2 C. & K, 789. [It is the duty of a rail-
road corporation, that receives passengers and commences their carriage at
the station of another road, to have a servant there to take charge of bag-
gage, until it is placed in their cars; and if it is the custom of the baggage-
master of the station, in the absence of such servant, to receive and take
charge of baggage in his stead, the proprietors will be responsible for bag-
gage so delivered to him. Jordan v. Fall River R. R. Co. 5 Cush. 69;
Butcher v. London & 8. W. R.'Co. 29 Eng. Law & Eq. 347.
240 LAW OF EVIDENCE. [PART IV.

responsible for any,even the slightest neglect.1_ Their contract
to carry safely means, not that they will insure the limbs of
the passengers, but that they will take due care, as far as com-
petent skill and human foresight will go, in the performance
of that duty. This extreme care is to be used in regard to
the original construction of the coach or vehicle, frequent
examination to see that it is safe, the employment of good
and steady horses and careful drivers, and the use of all the
ordinary precautions for the safety of passengers on the road.
The carrier is also bound to give them notice of danger, if .
any part of the way is unsafe. Accordingly, where the
injury resulted from negligent driving,’ insufficiency of the

 

The term “baggage” may be said, in’ general terms, to include such ar-
ticles as are of necessity or convenience for personal use, and such as it is
usual for persons travelling to take with them. It has been said that articles
for instruction or amusement, as books, or a gun, or fishing-tackle, fall within
the term “baggage.” Jordan v. Fall River R. R. Co. 5 Cush. 69. The car-
rier was held responsible for a lady's trunk, containing apparel and jewelry.
Brooke v. Pickwick, 4 Bing. 218; M’Gill v. Rowand, 8 Barr, 451; for a
watch lost in a trunk, Jones v. Voorhees, 10 Ohio, 145; and for money bona

\ Jide taken for travelling expenses and personal use, to a reasonable amount.
‘ Weed v. Saratoga & S, R. R. Co. 19 Wend. 534; Jordan v. Fall River R.

{ R. Co. 5 Cush. 69. In the case in 19 Wendell, the defendant was held liable
‘\ for the sum of $285 in the trunk of a passenger from Saratoga to New York.
‘In the case from 5 Cushing, $325 were lost in a trunk, and the verdict being

| for the whole sum, and as ‘there had been in the Court below no inquiry and
‘no finding as to the uses and purposes for which the money was designed,
ithe verdict was set aside and a new trial was granted, that such inquiry
might be made. A common carrier is not liable for articles of merchandise
not intended for personal use as baggage. Collins v. Boston and M. R. R.10
Cush, 506 ; see also Orange Co. Bank v. Brown; Pardee v. Drew, and Haw-
kins 8. Hoifinan, ubi supra ; Dibble v. Brown, 12 Geo. 217; Great Novel: R.
Co. v. Shepherd, 14 Eng. Law & Eq. 367.]

1 Story on Bailm. §§ 601, 602; 2 Kent, Comm. 600; [Farish v. ee 11
Gratt. 697; Derwort v. Loonies, ‘2 Conn. 245; Fuller v Naugatuck R. R.
Co. Ib. 557, ]

2 Harris v. Costar, 1 C. & P. 636; Stokes v. Saltonstall, 13 Peters, 181;
Story on Bailm. §§ 601, 602.

3 Story on Bailm. §§ 592, 593, 594, 598, 599, 601, 602, (3d edit.)

4 Dudley v. Smith, 1 Campb. 167; Christie v. Gees, 2 Campb. 79.

5 Aston v. Heaven, 2 Esp. 533; Crofts v. Waterhouse, 3 Bing. 319. If
the driver, having a choice of two ways, elects the most hazardous, the

1
PART Iv.] . CARRIERS. 241

vehicle,! overloading the coach,? improper stowage of the
luggage,’ drunkenness of the driver, want of due inspection
of the coach previous to the journey, or upon the road,° or
the like, the proprietor has been held liable. He is also liable
for an injury occasioned by leaping from the coach, where
the passenger was justly alarmed for his safety, by reason of
something imputable to the proprietor.®

 

owner is responsible at all events for any damage that ensues. Mayhew »v.
Boyce, 1 Stark. R. 423.

1 Christie v. Griggs, 2 Campb. 79; Bremner v. Williams, 1 C. & P. 414;
Sharp v. Grey, 9 Bing. 457; Ware v. Gay, 11 Pick. 106; Camden & Am-
boy Railroad Co. v. Burke, 18 Wend. 611; Curtis v. Drinkwater, 2 B. &
Ad. 169.

2 Israel v. Clark, 4 Esp. 259.

3 Curtis v. Drinkwater, 2 B. & Ad. 169. ,

4 Stokes y. Saltonstall, 13 Peters, 181.

5 Sharp v. Grey, 9 Bing. 457; Bremner v. Williams, 1 C. & P. 414; Ware
v. Gay, 11 Pick. 106.

6 Jones v. Boyce, 1 Stark. R. 493; Stokes v. Saltonstall, 13 Peters, 181.
The following count in assumpsit against a passenger-carrier, fpr bad man-
agement of a sufficient coach, it is conceived would be good.

“ For that the said (defendant) on —— was the proprietor of a coach for
the carriage of passengers with their luggage between and ——, for
hire and reward; and thereupon, on the same day, in consideration that the
plaintiff, at the request of the said (defendant), would engage and take a seat
and place in said coach, to be conveyed therein from said to for a
reasonable hire and reward to be paid to him by the plaintiff, the said (de-
Jendant) undertook and promised the plaintiff to carry and convey him in
said coach, from to , With all due care, diligence, and skill. (*)
And the plaintiff avers that, confiding in the said undertaking, he thereupon
engaged and took a seat in said coach and became a passenger therein, to be
conveyed as aforesaid, for such hire and reward to be paid by him to the
said (defendant). But the said (defendant) did not use due care, diligence,
and skill, in carrying and conveying the plaintiff as aforesaid; but on the
contrary so overloaded, and so negligently and unskilfully conducted, drove,
and managed said coach, that it was overturned; by means whereof the
plaintiff was grievously bruised and hurt,[here state any other speciai injuries, |
and was sick and disabled for a long time, and was put to great expense for
nursing, medicines, and medical aid.”

If the injury arose from insufficiency in the coach, or horses, insert at (*)
as follows: “and that the said coach was sufficiently stanch and strong,
and that the horses drawing the same were and should be well broken, and
manageable, and of competent strength ;”— and assign the breach accord-
ingly.

VOL. II. 21

 

 

 

 

 
242 LAW OF EVIDENCE. [PART Iv.

§ 222. It is only on the ground of negligence, that the car-
rier of passengers is held liable. This is therefore a material
point for the plaintiff to make out in evidence, and without
which he cannot recover. He must also prove the defendant’s
engagement to carry him, and that he accordingly took his
place in the vehicle! But where the injury resulted from the
breaking of the harness, or the breaking or overturning of
the coach or car, or any other accident, occurring on the road,
while the vehicle or machinery and railway were in the hands
and exclusive management of the defendants or their agents,”
this is itself presumptive evidence of negligence, and the
onus probandi is on the proprietor of the vehicle to establish
that there has been no negligence whatever, and that the
damage has resulted from a cause which human care and
foresight could not prevent.2 Where the breaking down of

 

1 [Where a railroad company receives upon its track the cars of another
company, places them under the control of its agents and servants, and
draws them by its own locomotive over its own road, to their place of desti-
nation, it assumes towards the passengers coming upon its road in such cars
the relation of common carriers of passengers, and all the liabilities incident
to that relation ; and this is so whether such passengers purchase their tickets
at one of the company’s stations, or at a station of a contiguous railroad, or
of any other authorized agent of the company. Schopman v. Boston and
W. R. R. Co. 9 Cush. 24. And as such passenger-carrier, the railroad com-
pany is bound to the most exact care and diligence in the management of
the trains and cars, in’the structure and care of the tract, and in all the sub-
sidiary arrangements necessary to the safety of the passengers. Ib. McElroy
v. Nashua, &c. R. R. Co. 4 Cush. 400; Curtiss vr. Rochester, &c. R. R. Co.
20 Barb. 282; Galena, &c. R. R. Co. v. Fay, 16 Ill. 538.

The defendants ran cars from A to B, and advertised that on the arrival
of the cars at B, stages would leave for C. The plaintiff bought of the
defendants a ticket for the fare to B. Arriving at B, he took the stage for
C and received an injury while going in the stage from B to C. The de-
fendants did not own or control the stage, nor participate in the profits of its
use. The plaintiff brought an action on a special contract to carry him
safely by railroad and stage, and it was held that the, action could not be
maintained. Hood v. New Haven, &c. R. R. Co. 22 Conn. 1.]

2 Carpue v. London Railw. Co. 5 Ad. & El. 747, N.S.

3 Story on Bailm. $§ 601 a, 602; McKinney v. Neil, 1 McLean, R. 540;
Christie v. Griggs, 2 Campb. 79; Ware v. Gay, 11 Pick. 106; Skinner v.
The London, &c. Railway Co. 4 Am. Law Rep. 83, N. 8.
PART Iv.] CARRIERS. 243

the carriage was occasioned by an original defect in the iron
axle, which, though concealed by the wooden part of the
axle, might have been discovered by unscrewing and sep-
arating them, the proprietor has been held chargeable with
negligence, in not causing such examination to be made, pre-
viously to any use of the vehicle!’ But that he is liable for
such an accident, where the fracture was caused by an orig-
inal internal defect in the forging of the bar, undiscoverable
by the closest inspection, and unavoidable by human care,
skill, and foresight, is a point which no decision has yet
sustained. On the contrary, in a recent action to recover
damages occasioned by precisely such a defect, where the
defendant moved the Court below to instruct the Jury that
if he had used all possible care, and the accident happened
without any fault on his part, but by reason of a defect
which he could not discover, the plaintiff was not entitled to
recover, but the Court refused to do so, and instructed the
Jury that the defendant was answerable at all events; it was
held by the Court above, that this insiruction was erroneous,
the law being stated, in conclusion, in these words: “ The
result to which we bave arrived, from the examination of the
case before us, is this: That carriers of passengers for hire
are bound to use the utmost care and diligence in the pro-
viding of safe, sufficient, and suitable coaches, harnesses,
horses, and coachmen, in order to prevent those injuries
which human care and foresight can guard against; and
that if an accident happens from a defect in the coach,
which might have been discovered and remedied upon the
most careful and thorough examination of the coach, such
accident must be ascribed to negligence, for which the owner
is liable in case of injury to a passénger happening by rea-
son of such accident. On the other hand, where the acci-
dent arises from a hidden and internal defect, which a careful
.and thorough examination would not disclose, and which
could not be guarded against by the exercise of a sound

 

1 Sharp v. Grey, 9 Bing. 457; [Hegeman v. Western R. R. 3 Kernan,
(N. Y.) 9.]
244 LAW OF EVIDENCE. [PART Iv.

judgment and the most vigilant oversight, then the proprie-
tor is not liable for the injury, but the misfortune must be
borne by the sufferer, as one of that class of injuries for
which the law can afford no redress in the form of a pecuni-
iary recompense. And we are of opinion that the instruc-
tions, which the defendants’ counsel requested might be
given to,the Jury in the present case, were correct in point
of law, and that the learned Judge erred in extending the
liability of the defendants further than was proposed in the
instructions requested.” ?

§ 222 a. Where the action is against a common carrier of
passengers, for refusing to receive and convey the plaintiff,
the carrier may prove, as a good defence, that the plaintiff
was a person of bad or doubtful character, or of bad habits;
or, that his object was to interfere with the defendant’s inter-
ests, or to disturb his line of patronage; or, that he refused
to obey the reasonable regulations made for the government
of passengers in that line or mode of conveyance. And such
carrier may rightfully inquire into the habits or motives of
persons who offer themselves as passengers.2. ~But if the
plaintiff has been received as a passenger and conveyed a
part of the way, it seems he cannot be turned out on the
ground that he is not a person of good character, so long as
he was not guilty of any impropriety during the passage?

 

1 Ingalls v. Bills, 9 Met. 1, 15.
2 Jenks v. Coleman, 2 Sumn. 221.
3 Coppin v. Braithwaite, 8 Jur. 875.
PART Iv.] CASE. 245

CASE.

§ 223. Unpsr this head it is proposed only to mention
some general principles of evidence, applicable to the action
of Trespass on the Case, in any of its forms ; referring to the
appropriate titles of Adultery, Carriers, Libel, Malicious Pros-
ecution, Nuisance, Trespass, Trover, &c., for the particular
rules relating to each of these heads.

§ 224. The distinction between the actions of Trespass vi
et armis,and Trespass on the Case, is clear, though some-
what refined and subtle. By the former, redress is sought
for an injury accompanied with actual force; by the latter, it
is sought for a wrong without force. The criterion of Tres-
pass vi et armis, is force directly applied, or, vis proxima. If
the proximate cause of the. injury is but a continuation of
the original force, or, vis impressa, the effect is immediate,
and the appropriate remedy is Trespass vi et armis. But if
the original force, or vis impressa, had ceased to act, before
the injury commenced, the effect is mediate; and the appro-
priate remedyis Trespass on the Case. Thus, if a log, thrown
over a fence, were to fall on a person in the street, he might
sue in Trespass; but if, after it had fallen to the ground, it
caused him to stumble and fall, the remedy could be only by
Trespass on the Case.) The intent of the wrongdoer is not
material to the form of the action; neither is it generally
important, whether the original act was or was not legal.
Thus, though the act of sending up a balloon was legal, yet
Trespass vi et armis was held maintainable, for damage done
by the accidental alighting of the balloon in the plaintiff’s
garden?

 

1 Chitty on Plead. 115-120; Smith v. Ruthford, 2 S. & R. 358.
2 Guille v. Sian, 19 Johns. 381. [Where the act is that of the servant
21 *
246 LAW OF EVIDENCE. [PART Lv.

§ 225. For injuries to relative rights, the Action on the
Case is the appropriate remedy. If the injury was without
force, as for example, enticing away a servant, Case is the
only proper remedy ; but if it be done with force, such as the
battery of one’s servant, or the like, the action may be in
Case, or in Trespass vi et armis, at the plaintiffs election ;
and in the latter form, he may join a count for a battery of
himself.

§ 226. Where the injury is not to relative, but to absolute
rights, the question, whether the party may waive the force,
and sue in Trespass on the Case, for the mere consequential
damages, has been much discussed, with no little conflict of
opinion. Where the tortious act was done to the property of
the plaintiff, and the defendant has derived a direct pecuniary
benefit therefrom, as, if he seized the plaintiff's goods and
sold them as his own, it is clear that the plaintiff may waive
the tort entirely, and sue in assumpsit for the price of the
goods. So, though the property was forcibly taken, the force
may be waived, and ¢rover, which is an Action on the Case,
may be sustained, for the value of the goods. It is also
agreed, that, where an injury was caused by the negligence
of the defendant, but not wilfully, as by driving his cart
against the plaintiff's carriage, Trespass on the Case may be
maintained, notwithstanding the injury was occasioned by
force, directly applied? And it has also been laid down,

 

in performing his duty to his master, Case is the only remedy against the
master, and is only maintainable when the act is negligent or improper;
and this rule applies to all cases where the carriage or cattle of a master are
placed in the care and under the management of a servant, a rational agent.
The agent’s direct act or trespass is not the direct act of the master. Each
blow of the whip, whether skilful and careful or not, is not the blow of the
master, it is the voluntary act of the servant. Sharrod v. The London, &c.
R. Co. 4 Eng. Law and Eq. 401.]

1 Chitty on Plead. 128, [153], 181, [229]; Ditcham v. Bond, 2M. & S.
436; Woodward v. Walton, 2 New Rep. 476.

2 Williams v. Holland, 10 Bing. 112; Rogers v. Imbleton, 3 New Rep.
117; Moreton v. Hardern, 4 B. & C. 223; Blin v. Campbell, 14 Johns.
432; McAllister v. Hammond, 6 Cow, 342; Dalton v. Favour, 3 N. Hamp.
465.
PART IV.] CASE. 247

upon consideration, as a general principle, that where an in-
jury has been done, partly by an act of trespass, and partly
by that which is not an act of trespass, but the proper subject
of an action on the Case, both acts being done at the same
time, and causing a common injury, the party may sue in
either form of action, at his election. This rule has been
illustrated by the case of a weir, or dam, erected partly on
the plaintifl’s ground, and partly on that of another riparian
proprietor! It has also been held, that Case would lie for a
distress, illegally made, after tender of the rent due;? and
for a tortious taking, under pretence of a distress for rent,
where there was no right to distrain.? In this last case, Lord
Denman, C. J., proceeded upon the general ground, that,
though the taking of the goods was a trespass, the owner
was at liberty to waive it, and bring Case for the consequen-
tial injury arising from the unlawful detention. Indeed, it
is difficult to discern any reason why the party may not, in
all cases, waive his claim to vindictive damages, and pro-
ceed in Case, for those only actually sustained; or why he
may not as well waive his claim fora part of the injury, and
go for the residue, as to forgive the whole. There are, how-
ever, several decisions, both English and American, to the
effect that, where the injury is caused by force, directly ap-
plied, the remedy can be pursued only in Trespass.6

 

1 Wells v. Ody, 1 M. & W. 459, per Ld. Abinger ; Id. 462, per Parke, B.;
Moore v. Robinson, 2 B. & Ad. 817; Knott v. Digges, 6 H. & J. 230.

2 Branscom v. Bridges, 1 B. & C. 145; 3 Stark. R. 171; Holland v. Bird,
10 Bing. 15.

3 Smith v. Goodwin, 4 B. & Ad. 418.

4 See Scott v. Sheppard, 2 W. Bl. 897; Pitts vy. Gaince, 1 Salk. 10; Cham-
berlain v. Hazlewood, 5 M. & W. 515; 3 Jur. 1079 ; Muskett v. Hill, 5 Bing.
N. C. 694; Parker v. Elliot, 6 Munf. 587; Van Horn v. Freeman, 1 Halst.
322; Haney v. Townsend, 1 McCord, 207; Ream v. Rank, 3 8. & R. 215;
Parker v. Bailey, 4 D. & R. 215; Moran v. Dawes, 4 Cowen, R. 412.

5 These decisions are referred to in 1 Met. & Perk. Dig. pp. 69, 70; 1
Harrison’s Dig. 42-47. But in some of the United States, the distinction be-»
tween the two forms of action has been abolished by statute. Thus, in
Maine it is enacted, “that the declaration shall be equally good and valid,
to all intents and purposes, whether the same shall be in form a declaration
in trespass, or trespass on the case.” Rev. St. ch. 115, § 13. So, in effect,
248 LAW OF EVIDENCE. [PART Iv.

§ 227. In this action, as in others, if there are several plain-
tiffs, they must prove a joint cause of action, such as dam-
age to their joint property, slander of both in their joint trade
or employment, and the like, or they will be nonsuited.! If
their interests are several, but the damage is joint, it has
been held sufficient.

§ 228. If the action is founded in fort, it is not necessary
to prove all the defendants guilty ; for as torts are several in
their nature, judgment may well be rendered against one
alone, and the others acquitted. But if the action is founded
on a breach of an express contract, it seems that the plaintiff
must prove the contract against all the defendants.®

§ 229. The particular day on which the injury is alleged
to have been committed, is not material to be proved. Orig-
inally, every declaration in trespass seems to have been con-
fined to a single act of trespass ; and if it was continuous in
its nature, it might be so laid; in which case it was consid-
ered as one act of trespass. Subsequently, to save the incon-
venience of distinct counts for each tortious act, the plaintiff
was permitted to consolidate into one count, the charge of
trespasses done on divers days between two days specifically
mentioned ; in which case it is considered as if it were a dis-
tinct count for every different trespass. In the proof of such
a declaration, the plaintiff may give evidence of any number
of trespasses within the time specified. But he is not obliged
to avail himself of this privilege; for he may still consider his
declaration as containing only one count, and for a single
trespass. When it is considered in this light, the time is im-
material; and he may prove a trespass done at any time

 

in Indiana. Hines v. Kinnison, 8 Blackf. 119. And in Connecticut, Rev.
St. 1849, tit. 1, § 274; Lowa, Rev. Stat. 1851, § 1733.

1 Cook v. Batchellor, 2 B. & P. 150; 2 Saund. 116 a, note, (2); Solo-
mons v. Medex, 1 Stark. R. 191.

2 Coryton ». Lithebye, 2 Saund. 115; Weller v. Baker, 2 Wills. 414.

3 Ireland v. Johnson, 1 Bing. N. C. 162; Bretherton v. Wood, 3 B. & B.
54; Max v. Roberts, 12 East, 89; Supra, § 214.
PART Iyv.] CASE. 249

before the commencement of the action, and within the time
prescribed by the statute of limitations. But the plaintiff is.
not permitted to avail himself of the declaration in both these
forms at the same time. He is therefore bound to make his
election, before he begins to introduce his evidence; and
will not be permitted to give evidence of one or more tres-
passes within the time alleged, and of another at another
time.t

§ 230. If the plaintiff charges both malice and negligence
upon the defendant, in doing the act complained of, the count
will be supported by evidence of the negligence only? And
where the action is against a carrier, or an innkeeper, for the
negligent keeping of the goods in his care, whereby they
were lost; proof of the loss affords presumptive evidence of
negligence on the part of the carrier or innkeeper or his ser-
vants.2 So, where the action is against a railway corporation,
for the destruction of property by sparks emitted from their
engine, the fact of the premises having been fired by sparks
from the passing engine is primd facie evidence of negligence
on the part of the company.*

§ 230 a. Where the damage, for which the action is
brought, has resulted from the misrepresentation of a fact by

 

1 Pierce v. Pickins, 16 Mass. 472, per Jackson, J.; Brook v. Bishop, 2 Ld.
Raym. 823; 7 Mod. 152; 2 Salk. 639; Monckton v. Pashley, 2 Ld. Raym.
974,976; Hume v. Oldacre,1 Stark. R. 351; 1 Saund. 24, note (1) by
Williams. See post, § 624.

_2 Panton v. Holland, 17 Johns. 92. [Where the declaration charges that
the defendant wrongfully kept a horse accustomed to bite mankind, and
that the defendant knew it, it need not aver that the injury complained of
was received through the defendant’s negligence in keeping the horse.
Popplewell v. Pierge, 10 Cush. 509; Mory v. Bardett, 9 Ad. & El. N. R.
101; Jackson v. Smithson, 15 M. & W. 563; Card v. Case, 5 M. G. & S.
622; Kerwhacker v. C. C. &e. R. R. Co. 3 Ohio (N. S.) 172.]

3 Dawson v. Chamney, 5 Ad. & El. 164, N. 8.; Story on Bailments,
§§ 472, 529. See supra, §§ 219, 222.

4 Pigoot v. Eastern Railroad Co. 3 M. Gr. & Sc. 229. And see McCready
v. S. Car. Railroad Co. 2 Strobh. 356.
250 LAW OF EVIDENCE. [PART IV.

the defendant, it is necessary to prove not only that the state-
ment was false in fact, but that it was made fraudulently, or
without probable cause; for if it was not known to be false
by the party making it, but on the contrary was made hon-
estly, and in full belief that it was true, he is not liable at
law. ‘Thus, where the allegation was, that the defendant
falsely represented to the sheriff, that one J. W., then in cus-
tody, was the same J. W. against whom the sheriff (plaintiff)
had another process ; it was held a good defence, that the de-
fendant believed, upon good and probable grounds, that the
representation was true So, if an agent assume to act as
such after the death of his principal, but in justifiable igno-
rance of that fact, he is not liable for such misrepresentation
of his agency?

§ 230 6. Whenever this action is brought for an injury to
land, it is sufficient for the plaintiff to allege and prove his
possession of the property, in order to entitle him to the action
against a stranger. If the possession was in fact vacant,
proof of his title alone will be constructive proof of his pos-
session. The nature and value of his interest will become
material, only as they affect the amount of the damages;
and for this purpose an equitable title may be shown, and
will be sufficient to entitle him to full damages.’

 

1 Collins v. Evans, 8 Jur. 345; 5 Ad. & El. 804, 820, N.S. If the party
who made the representation knew it at the time to be untrue, this is suffi-
cient evidence to sustain the allegation of fraud and deceit, though he did
not intend actually to defraud or injure the other. Watson v. Poulson, 15
Jur. 1111. And see Polhill v. Walter, 3 B. & Ad. 113. But in the sale of
real estate, if the vendor make representations respecting the land which
are materially erroneous, going to the basis of the contract, Equity will re-
scind the purchase, though the vendor had no intention to deceive. Taylor
v. Fleet, 1 Barbour, 471. And see Doggett v. Everson, 3 Story, R. 733;
1 Story, Eq. Jur. § 193. As to goods, see Johnson v. Peck, 1 Woodb. &
Minot, 834.

2 Smout v. Ilbery, 10 M. & W.1. And see Story on Agency, § 265 a;
Pasley v. Freeman, 3 T. R. 57; Hayeratt v. Creasy, 2 East, 92; Wilson v.
Fuller, 3 G. & D. 570. :

3 Gardiner v. IIeartt, 1 Comst. 528; 2 Barb. S. C. R. 165; Schenck v.
Cuttrell, 1 N. Jer. 5.
PART IV.] CASE. 251

§ 231. Under the general issue, the defendant is ordinarily
permitted to give evidence of any matters ex post facto, which
show that the cause of action has been discharged, or that in
equity and conscience the plaintiff ought not to recover.
Thus, a release, a former recovery, or a satisfaction, may be
given in evidence? So, also, in an action for enticing away
a servant, the defendant may, under this issue, give evidence
that the plaintiff has already recovered judgment for damages
against the servant, for departing from his service, and that
since the commencement of the present action, this judgment
had been satisfied? So, in an action on the case for beating
the plaintiff’s horse, the defendant may show that it was
done to drive the horse from his own door, which he ob-
structed And in an action for obstructing dncient lights,
by the erection of a house, a customary right so to do, may
be given in evidence. So, in an action for hindering the
plaintiff in the exercise of his trade, it may be shown, under
this issue, that the trade was unlawful;® and in an action for
destroying a rookery, it may be shown that it was a nuisance.’
And in general, wherever an act is charged in this form of
action to have been fraudulently done, the plea of not guilty
puts in issue both the doing of the act, and the motive with
which it was done.’

§ 232. But to this rule there are some exceptions ; such as

 

1 Bird v. Randall, 3 Burr, 1353, per Ld. Mansfield.

2Ibid.; Yelv. 174 a, note (1), by Metcalf; Stephen on Plead. 182, 183,
(Am. ed. 1824) ; Stafford v. Clark, 2 Bing. 377; Anon. 1 Com. R. 273.

3 Bird v. Randall, 3 Burr. 1345.

4 Slater v. Swann, 2 Stra. 872.

5 Anon. 1 Com. R. 273.

6 Tarleton v. McGawley, Peake’s Cas. 207, per Ld. Kenyon.

7 Hannam v. Mockett, 2 B. & C. 93%. But if it be a public nuisance, not
specially injurious to the party, he has no right to abate it. Dimes v. Petley,
15 Ad. & El. 276, N.S.

8 Mummery v. Paul, 8 Jur. 986. So in an Action on the Case for wrong-
fully keeping a ferocious dog, knowing him to be of such a disposition, the
plea of not guilty is held to put in issue the scienter. Card v. Case, 12 Jur.
247, .
i

252 LAW OF EVIDENCE. [PART Iv.

the statute of limitations ; justification, in slander, by alleging
the truth of the words; retaking on fresh pursuit of a pris-
oner escaped; which cannot be given in evidence, unless
specially pleaded.

§ 232 a. The defendant may also prove, in defence, that
the injury might have been avoided by the use of due care
on the part of the plaintif’; for the question is, not only
whether the defendant did an improper act, but whether the
injury to the plaintiff may legally be deemed the consequence
of it. But it will not be sufficient, as a complete defence to
the action, to show merely that the plaintiff is chargeable
with want of due care, unless the injury was entirely caused
by such omission; for if it only contributed to it in part, the
plaintiff may recover; and his own misconduct in that case,
if available to the defendant, will go in reduction of damages.”
And if the plaintiff was at the time a passenger in the vehicle
of another, he becomes so far identified with the owner and
his servants as that their want of due care may be shown in
defence of the acfion®

§ 232 6. Where the injury complained of was occasioned
by the negligence of a person in the defendant’s employment,
it has often been found extremely difficult to determine
whether the relation of master and servant existed, so as to
charge the defendant or not. But by comparing the adjudged
cases, the principle to be deduced from them seems to be
this; that where the person employed is in the exercise of a
distinct and independent employment, the owner parting, for
the time, with all control over that which is the subject of
the bailment or contract, and having no control over the con-

 

11 Chitty on Pl. pp. 433, 434. *

2 Butterfield v. Forrester, 11 East, 60; Marriott v. Stanley,1 M. & G.
568; Bridge v. The Grand Junction Railw. Co. 8 M.& W. 2414; Clayards
v. Dethick, 12 Ad. & El. 439, N. S.; Perkins v. Eastern Railr. Co. 16
Shepl. 307; Greenland v. Chaplin, 19 Law J. 273 Exch. See Moore »v.
Abbot, 2 Reding. 46.

3 Thorogood v. Bryan, 8 M. G. & 8. 115; Cattlin ». Hills, Id, 128.
PART Iv.] CASE. 258

duct of the person employed, or his servants, such person
stands in the relation of a sub-contractor only, and the per-
sons whom he employs are his own servants, and not those
of the principal party; and therefore the latter is not liable
for their negligence or misdoing. It is to this. point, there-
fore, that the evidence on each side should be directed.
Thus, the trustees under a public road-act, were held not
responsible for the negligence of the men employed in mak-
ing the road, the work being carried on by a regular surveyor
in their absence, whom they had no right to turn out of
employment.? So, where a licensed drover undertook to drive
an ox to the slaughter-house, and sent him by his own ser-
vant, through whose negligence the ox did damage; it was
held that the drover, and not the owner of the ox, was liable
for the damage, as he was in the exercise of an independent
employment, and had the exclusive control of the subject of.
the contract.3

i

 

1 Story on Agency, § 454 a, (2d edit.) 228-233; [Powell v. Deveney, 3
Cush. 300; Lynch v. Nardin, 1 Ad. & Ell. N. S. 29.]

2 Duncan »v. Findlater, 6 Cl. & Fin. 894, 910.

3 Milligan v. Wedge, 12 Ad. & El. 737. And see Burgess v. Gray, 14
Law Journ. 184, N. S.; Quarman ». Burnett, 6 M. & W. 499; Rapson v.
Cubitt, 9 M. & W. 710; White v. Hague, 2 Dowl. & Ry. 33; Earl v. Hall,
2 Met. 353. These and other cases cited in them, devolve the liability on
the person who was the master of the enterprise. Other cases, apparently
nearly similar in their facts, have held the general owner liable; but it will
be found, on examination, that in those cases the general owner of the sub-
ject was also the master of the work, retaining the management and control,
and rendering the contract in essence but a case of mere day labor or ordi-
nary service. See Littledale v. Ld. Lonsdale, 2 H. Bl. 267, 299; Stone wv.
Codman, 15 Pick. 297; Wanstall v. Pooley, 6 Cl. & Fin. 910, note; Randle-
son v. Murray, 8 Ad. & El. 109; Sly v. Edgely, 6 Esp. 6; Matthews v. W.
Lond. Waterw. Co. 4 Campb. 403; Leslie v. Rounds, 4 Taunt. 619. The.
case of Bush v. Steinman, 1 B. & P. 404, in which the owner of a house was
held liable for the negligence of laborers employed by a contractor, who had
undertaken to repair the house: by the job, was disapproved as an extreme
case, by the Ld. Chancellor, in Duncan v. Findlater, 6 Cl. & Fin. 903, and
by Ld. Brougham, Id. 909; and was doubted by Ld. Denman, in Milligan v.
Wedge, supra, and it has since been overruled in Reedie v. N. West. Railw.
Co. 18 Jur. 659. By the Assizes Act of 11 Geo. 4 & 1 W.4, c. 68, § 8, com-
mon carriers are rendered liable for the felonious acts of servants in their em-

VOL. II. 22
254 LAW OF EVIDENCE. [PART Iv.

ployment. Under this statutory provision, a railway corporation is held liable
for the acts of the servants of those who had undertaken, by special contract,
to do this part of the business. Machu v. The London & Southwestern
Railw. Co. 12 Jur. 501. [The case of Bush v. Steinman was examined at
considerable length by Thomas, J., in Hilliard v. Richardson, 3 Gray, 349 ;
and its authority was denied. That case decides that the owner of land who
employs a carpenter, for a specific price, to alter and repair a building there-
on, and to furnish all materials for this purpose, is not liable for damages re-
sulting to a third person from boards deposited in the highway in front of the
land by a teamster in the employ of the carpenter, and intended to be used
in such alteration and-repair.]

Where several persons are employed in the same service, and one of them
is injured by the carelessness of another, the master or employer is not liable.
Winterbottom v. Wright, 10 M. & W. 109; Strange v. McCormick, 3 Am.
Law Journ. 398, N. 8.; Farwell v. Boston & Worcester Railroad Corp. 4
Met. 49: Priestley v. Fowler, 3 M. & W.1; Murray v. S. Car. Railroad Co.
1 McMull. 385; Hayes v. Western Railroad Corp. 3 Cush. 270. [The fact
that the servant injured is a minor, does not at all affect his legal rights,
King v. Boston & Worcester Railroad, 9 Cush. 112. The obligation of a
corporation, so far as respects persons in their employment, does not extend
beyond the use of ordinary care and diligence. Ibid. It would present a
very different case if the corporation should employ an unfit and improper
person, and in that way the servant should be exposed to, and suffer injury.
Fletcher, J. Albro v. Agawam Canal Co. 6 Cush. 77. It does not affect the
principle at all that the duties of the two servants may be different, those of
one being of a higher grade than those of the other; as where an operative
is injured by the gross negligence and want of skill of a superintendent, both
being servants of the same master, and acting in the same common service.
Albro v. Agawam Canal, 6 Cush. 75. See also Brown v. Maxwell, 6 Hill,
592; Coon v. Syracuse, &c. Railroad, 6 Barb. 231; Ryan v. Cumberland,
&c. Railroad, 23 Penn. State R. 387; Hutchinson v. York, &c. Railroad Co.
5 W.H. & G. 343; Wigmore v. Jay, Ib. 354; Seymour v. Maddox, 16 Ad.
& El. (N.S.) 326. Nor is one servant liable to an action by another servant
in the employment of the same master, for damages occasioned by the negli-
gence of the first servant in such employment. Albro v. Jaquith, 4 Gray,
99; Winterbottom v. Wright, 10 M. & W.115. In ordinary cases, where a
saeenin’ is employed to do a dangerous job, or to work in a service of peril,
if the danger belongs to the work itself, or to the service in which he engages,
he will he! held to all the risks which belong to either; but where there is no
danger in the work or service itself, and nfhte peril grows out of extrinsic
causes or circumstances, which cannot be discovered by the use of ordinary
precaution and prudence, the employer is liable, precisely as a third person,
if the loss or injury is caused by his neglect or want of care. + Perry v. Marsh,
25 Ala. 659.]
PART IV.] COVENANT. 355

COVENANT!

§ 233. In this action, by the Common Law, there is no
general issue or plea, which amounts to a general traverse of
the whole declaration, and of course obliges the plaintiff to
prove the whole ;? but the evidence is strictly confined to the
particular.issue raised by a special plea, such as non est fac-
tum, which will be treated under the head of Deed; and Du-
ress, Infancy, Release, é&c., which will be considered under
those titles. The liability of an heir, on the covenant of his
ancestor, will be treated under the head of Heir.

§ 234. If the deed is not put in issue by the plea of non est
factum, the defendant, by the rules of the Common Law, is
understood to admit so much of the deed as is spread upon
the record. If the plaintiff would avail himself of any other
part of the deed, he must prove the instrument, by the attest-
ing witnesses, or by secondary evidence in the usual way.’

§ 235. If the plaintiff’s right of action depends on the per-
formance of a condition precedent, which is put in issue, he
must prove a performance according to the terms of the cove-
nant. It will not suffice, in an action on a specialty, to show
that other terms have been substituted by parol, although

2

 

1 For a full and an elaborate discussion of the doctrine of Covenants for
Title, the student is referred to the recent work of Mr. Rawle, on that sub-
ject.

2 1 Chitty on Pl. 428. In some of the United States, under statutes for
the abolishment of special pleading, the plea of non est factum has been
adopted in practice, as being in effect a general traverse of the declaration.
Granger v. Granger, 6 Hamm. (Ohio) R. 41; Provost v. Calder, 2 Wend.
517.

3 Williams v. Sills, 2 Campb. 519; Ante, Vol. 1, § 569-582.
th Spe at

256 LAW OF EVIDENCE. [PART Iv.

the substituted agreement has been fully performed. Thus,
where the plaintiff sued in covenant for the agreed price for
building two houses, which he bound himself to finish by a
certain day, and averred performance in the terms of the
covenant; proof of a parol enlargement of the time, and of
performance accordingly, was held. inadmissible.?

§ 236. The breach, also, must be proved as laid in the
declaration. And here it is a general principle, that where
the party destroys that which was a subject of his agree-
ment, or voluntarily puts it out of his power to perform that
which he engaged to perform, it is a breach of his covenant.
Thus, if he covenant to deliver the grains, made in his brew-
ery, and before delivery he renders them unfit for use by
mixing hops with them ;‘ or, to deliver up a certain obliga-
tion of the covenantee, and before delivery he recovers judg-
ment upon it;® or, to permit the covenantee to sue in his
name, agreeing to assign to him the judgment when re-
covered, and before assignment he releases the judgment
debtor ;° or, that certain goods of a debtor shall be forth-
coming to the officer, and in the mean time he causes them

 

1 1 Chitty on P). 280; 3 T. R. 592. But if the original agreement was
not under seal, evidence ag a parol enlargement of the time, with perform-
ance accordingly, is admissible. Ante, Vol. 1, § 304.

2 Littler v. Holland, 3 T. R. 590. And see Maryon v. Carter, 4 C. & P.
295; Paradine v. Jane, Aleyn, 26; Campbell v. Jones, 6 T. R. 571.

3 Hopkins v. Young, 11 Mass. 302. But if the covenantor involuntarily
becomes unable to perform, but the disability is removed before the day of
performance arrives, it is no breach. Heard v. Bowers, 23 Pick. 455.
Where the performance of a duty is rendered impossible, by the act of God,
if the duty was created by the law alone, he is excused; but if the duty was
created by his own contract, he is still answerable for the non-performance.
See Platt on Covenants, p. 582, and cases there cited. Regina v. Justices of
Leicestershire, 15 Ad. & El. 88, N.S. A covenant to keep in repair is
broken if the lessee pull down the buildings; but a covenant to leave the
premises in repair i8 not, provided he rebuilds them within the term. Shep.
Touchst. p. 173.

4 Griffith v. Goodhand, T. Raym. 464. And see Mayne’s case, 5 Co. 21.

5 Teat’s case, Cro. El. 7.

6 Hopkins v. Young, 11 Mass. 302.
PART Iv.] COVENANT. 257

to be seized on process in his own favor;+ the covenant is
broken. And in regard to covenants of indemnity, this dis-
tinction has been taken: that where the covenant is to in-
demnify against a liability already incurred, it is not broken
till the covenantee is sued upon that liability ; but where
the debt or duty may accrue in future, the covenant is broken
whenever the liability to a suit arises.?

§ 237. It will be sufficient, as we have already seen,’ to
prove the breach substantially as laid; but it must also
appear, that the covenant is substantially broken. If the
allegation is of a total loss or destruction, it will be sup-
ported by proof of a partial loss; for it is the loss or damage,
and not the extent of it, which is the substance of the alle-
gation. So, where the tenant covenanted to keep the trees
in an orchard whole and undefaced, reasonable use and wear
only excepted, the cutting down of trees past bearing, was
held to be no breach; for the preservation of the trees for
fruit was the substance of the covenant.2 But where the
breach assigned was, that the tenant had not used the farm
in a husbandlike manner, but, on the contrary, had com-
mitted waste, evidence of acts not amounting to waste, was
held inadmissible; for the waste was the substance of the
allegation.®

*

§ 238. In regard to the averment of proof of notice to the

 

1 Whitman v. Slack, 1 Harringt. 144. The neglect of an officer to return
an execution, under which he has sold an equity of redemption, has been
held a breach of the covenant in his deed of sale, that he had obeyed all the
requisitions of law in the proceeding. Wade v. Merwin, 11 Pick. 280.

2 3 Com. Dig. 110, Condition, I.; Lewis v. Crockett, 3 Bibb. 196.

3 Ante, Vol. 1, § 56-74.

4 Ante, Vol. 1, § 61.

5 2 Stark. Ev. 248, cites Good v. Hill, 2 Esp. 690.

6 Harris v. Mantle, 3 T. R. 307. And see ante, Vol. 1,§ 52. [Where
there was a covenant prohibiting the erection of a forge or furnace for the
manufacturing of iron, the erection of buildings in which were forges for
heating, moulding, and working iron, was held not to be a breach thereof.
Rogers v. Danforth, 1 Stockt. (N. J.) 289.]

22 *
258 LAW OF EVIDENCE. [PART Iv.

defendant, a distinction is taken between things lying more
properly in the knowledge of the plaintiff, and things lying
in the knowledge of the defendant, or common to them both.
In the former case, the plaintiff must aver and prove notice
to the defendant. But where the party bound has the same
means of ascertaining the event on which his duty arises, as
the party to whom he is bound, neither notice nor request
are necessary to be proved.

§ 239. Where the defendani is sued as assignee of the orig-
inal covenantor, and the issue is on the assignment, it will be
sufficient for the plaintiff to give evidence of any facts from
which the assignment may be inferred; such as possession
of the premises leased, or payment of rent to the plaintiff?

1 1 Chitty on Plead. 286; Keys v. Powell, 2 A. K. Marsh. 253; Peck v.
McMurtry, Id. 858; Muldrow v. McCleland, 1 Littell, 1.

2 Williams v. Woodward, 2 Wend. 487; Id. 568; Derisley v. Custance,
4T. R. 75; Platt on Cov. 64; Holford v. Hatch, Doug. 178; Hare v. Cator,
Cowp. 766. On the liability of an assignee, see Platt on Cov. 405-465.’ In
the declaration against an assignee, the assignment is alleged as in the fol-
lowing precedent of a declaration by a lessor, against the assiynee of his lessee,
for non-payment of rent.

“In a plea of covenant. For that whereas heretofore, to wit, on the
‘day of , by a certain indenture then made between the plaintiff of the
one part and one C. D. of the other part, one part whereof, sealed with the
seal of the said C. D., the plaintiff now brings here into Court, the plaintiff
demised and leased to the said C.D. a certain messuage, lands, and premises
situated in ——, to have and to hold the same to the said C. D. and his as-
signs, from the day of , for the full term of —— years then next
ensuing ; yielding and paying therefor to the plaintiff the clear yearly rent
of , payable [here describe the mode and times of payment], which rent
the said C. D. did thereby for himself and his assigns, covenant to pay to the
plaintiff accordingly. By virtue of which demise, the said C. D. on the —_
day of entered into the same premises, and was possessed thereof for
the term aforesaid.(*) And after the making of said indenture, and during
the term aforesaid, to wit, on the —— day of [naming any day before
the breach], all the estate and interest of the said C. D. in said term, then un-
expired, by an assignment thereof then made, came to and was vested in the
defendant, who thereupon entered into the said demised premises and be.
came possessed thereof, and continued so possessed from thence hitherto, [or,
‘until the —~ day of ——.’] Now, the plaintiff in fact says, that after

 

 

 

 

 

 

 
PART LV.] COVENANT, 259

For it is never necessary either to allege or prove the title of
the adverse party with as much precision as in stating one’s
own. Yetif the plaintiff does allege the particulars of the
defendant’s title, he must prove them as laid! Under an
issue on the assignment, the defendant may show that he
holds as an under-tenant, and not as an assignee ;? or, that
he is an assignee, not of all, but only of a part of the prem-
ises.3 He may also show in defence, under a proper plea,
that the covenant was broken, not by himself, but by another
person, to whom he had previously assigned all his interest
in the premises; and in such case it is not necessary for him
to prove either the assent of the assignee, or notice to his
own lessor, of the assignment.* It has been held, that where
the lessee of a term of years assigns his interest by way of
mortgage, the mortgagee is not liable to the landlord, as
assignee, until he has entered upon the demised premises ;®
but this doctrine has since been overruled, and the mortgagee
held liable as assignee, before entry.6 But an executor is not
liable as assignee, without proof of an actual entry.’

 

the making of said assignment, and during the said term, and before the
commencement of this suit, to wit, on the day of the sum of ——
of the rent aforesaid became due and was owing to the plaintiff from the
said defendant, and still is in arrear and unpaid, contrary to the covenant
aforesaid.”

1 Stephen on Pleading, pp. 337, 338; Turner v. Eyles, 3 B. & P. 456, 461 ;
2 Phil. Ev. 151, (7th edit.) ; Ante, Vol. 1, § 60. :

2 Holford v. Hatch, 1 Doug. 182; Earl of Derby v. Taylor, 1 East, 502.

8 Hare v. Cator, Cowp. 766.

4 Pitcher v. Tovey, 1 Salk. 81; Taylor v. Shum, 1 B. & P. 21.

5 Eaton v. Jaques, 2 Doug. 455. It is still held, that the mortgagee of a
ship is not liable as owner, until he takes possession. Brooks v. Bondsey,
17 Pick. 441; Colson v. Bonzey, 6 Greenl. 474 ; Abbott on Shipping, p. 19;
Briggs v. Wilkinson, 7 B. & C. 30.

6 Williams v. Bosanquet, 1 B. & Bing. 238; 4 Kent, Comm. 145; Wood-
fall’s Law of Landl. & Ten. p. 183, (5th ed. by Wollaston.) Sed queere ;
andsee Astor v. Hoyt, 5 Wend. 603; Astor v. Miller, 2 Paige, R. 68 ; Bour-
dillon v. Dalton, 1 Esp. 234; Cook v. Harris, 1 Ld. Raym. 367; Co. Lit. 46
b; Rex-v. St. Michaels, 2 Doug. 630, 632; Blaney v. Bearce, 2 Greenl. 132;
McIver v. Humble, 16 East, 199.

7 Buckley v. Pirk, 1 Salk. 316 ; Jevans v. Harridge, 1 Saund. 1, (note 1,)
by Williams.

 

 
260 LAW OF EVIDENCE. [PART Iv.

§ 240. But where the plaintiff claims as assignee, he must
precisely allege and prove the conveyances, or other mediums
of title, by which he is authorized to sue. If he claims as
assignee of a covenant real, he must show himself grantee of
the land, by a regular legal conveyance, from a person having
capacity to convey And in regard to covenants real, on
which any grantee of the land may sue the grantor in his own
name, or may be sued, it may not be improper here to observe,
(1.) that they are always such as have real estate for their
subject-matter ; and (2.) that they run with the land, that is,
that they accompany the lawful seisin, and are prospective in
their operation. If there is no seisin, the covenant remains

 

1 Steph. on Plead. p. 338. In an action by an assignee, his title is set
forth as in the following precedent of a declaration by a grantee of the re-
version, against the lessee of his grantor, for non-payment of rent.

“In a plea of covenant. For that whereas heretofore, to wit, on the ——
day of one J. S. was seised in his demesne as of fee of and in the fol-
lowing described messuage, land, ‘and tenements, situated in [here de-
scribe the premises.]| And being so seised, on the same day, by a certain
indenture made between him of the one part and the defendant of the other
part, one part whereof, sealed with the seal of the said defendant, the plain-
tiff now here brings into Court, [or, which indenture, being in neither part
in the possession, custody, or control of the plaintiff, he cannot produce in
Court,] the said J. S. demised the same premises to the defendant, [here pro-
ceed, mutatis mutandis, as far as this mark (*) in the preceding form.]
And after the making of said indenture, to wit, on the day of the
said J. S., being seised of the reversion of said estate, by his deed of bargain
and sale, [or, if in any other form of conveyance, state it,| duly executed,
acknowledged, and recorded, and now here by the plaintiff produced in
Court, for a valuable consideration therein mentioned, [bargained, sold,]
and conveyed the said reversion of and in the said premises to the plaintiff,
to have and to hold the same with the appurtenances to the plaintiff and his
heirs and assigns forever; by virtue of which deed the plaintiff thereupon
became seised of the said reversion according to the tenor of the same, and
has ever since continued to be so seised thereof. Now the plaintiff in fact
says, that after the making of said deed [of bargain and sale] and during
the said term, [conclude as in the preceding form.” |

2 Milnes v. Branch, 5 M. & S. 411; Roach v. Wadham, 6 East, 2895 2
Sugd. Vend. 479, 489-491; Randolph v. Kinney, 3 Rand. 394; Beardsley
v. Knight, 4 Verm. R. 471. The action for breach of a covenant real, lies
only for him who held the land at the time of the breach. A mesne cov-
enantee or owner has no right of action for damages, until he has paid
them to those who have come in under himself. Chase v. Weston, 12 N.
Hamp. 413.

 

 

 

 
PART Iv.] COVENANT. 261

merely personal! The object of these covenants is threefold.
(1.) To preserve the inheritance ; such as covenants to keep
in repair;? and covenants to keep the buildings insured
against fire, and if they are burnt, to reinstate them with the
insurance-money.® (2.) To continue the relation of land-
lord and tenant, &c.; such as to pay rent;* to do suit to
the lessor’s mill,® or, to grind the tenant’s corn;® and for
renewal of leases.’ (3.) To protect the tenant in the enjoy-
ment of the land. Of this class are, the covenant to warrant
and defend the premises, to him and his heirs and assigns,
against all lawful claims and demands ;® to make further
assurance ;* to remove incumbrances;" to release suit and
service; to produce title-deeds in any action, in support
or defence of the grantee; for quiet enjoyment; never to

 

1 Platt on Covenants, p. 63; Shep. Touchst. 171; Spencer’s case, 5 Co.
16; Norman v. Wells, 17 Wend. 136; Nesbit v. Nesbit, Cam. & Nor. R.
324; Slater v. Rawson, 1 Met. 450. The nature of covenants real is dis-
cussed in 4 Cruise’s Dig. tit. 32, ch. 26, § 23, note, (Greenleaf’s ed.)

2 Platt on Cov. 65, 267; Lougher v. Williams, 3 Lev. 92; Demarest v.
Willard, 8 Cow. 206; Norman v. Wells, 17 Wend. 148; Pollard v. Shaaffer,
1 Dall. 210; Shelby v. Hearne, 6 Yerg. 512; Kellogg v. Robinson, 6 Verm:
276 ; Sampson v. Easterby, 9 B. & C. 505.

3 Vernon v. Smith, 5 B. & Ad. 1, per Best, J.; Platt on Cov. 185;
Thomas v. Von Kapff, 6 G. & J. 372.

4 Stevenson v. Lambard, 5 East, 575; Holford v. Hatch, 1 Doug. 183;
Hurst v. Rodney, 1 Wash. C. C. R. 375. ,

5 This is a real covenant as long as the lessor owns both the mill and the
reversion. Vivyan vr. Arthur, 1 B. & C. 410; 42 E. 3,3; 5 Co. 18.

6 Dunbar v. Jumper, 2 Yeates, 74; Kimpton v. Walker, 9 Verm. 191.

7 Spencer's case, Moore, 159; Platt on Cov. 470; 12 East, 469, per Ld.
Ellenborough ; Isteed v. Stonely, 1 And. 82.

8 Shep. Touchst. 161; Marston v. Hobbs, 2 Mass. 433 ; Wiltby v. Mount-
fort, 5 Cow. 137; Van Horn v. Crain, 1 Paige, 455.

9 Middlemore v. Goodale, Cro. Car. 503.

10 Sprague v. Baker, 17 Mass. 586. But a covenant that the land is not
incumbered, is personal only. Clark v. Swift, 3 Met. 390.

li Co. Lit. 384 b.

2 4 Cruise, Dig. 393, tit. 32, ch. 25, § 99, (Greenleaf’s edit.) ; Barclay v.
Raine, 1 Sim. & Stu. 449; Platt on Cov. 227; 10 Law Mag. 353-357.

13 Noke v. Awder, Cro. El. 373, 436; Campbell v. Lewis, 3 B. & Ald.
392; Platt on Cov. 470; Markland v. Crump, 1 Dev. & Bat. 94; Heath v.
Whidden, 11 Shepl. 383; Williams v. Burrell, 1 M. G. & S. 402.
262 LAW OF EVIDENCE. [PART Iv.

claim or assert title to the premises;! to supply the premises
with water ;* to open a street on which the land granted is
bounded ;* not to establish or permit another mill on the
same stream, which propels the mill granted; * not to erecta
building on grounds dedicated by the covenantor to the pub-
lic, in front of lands conveyed by the covenantor to the
assignor of the plaintiff;® or to use the land in a particular
manner, for the advantage of the grantor;® and the like.
When any of these covenants are broken, after the land has
been conveyed to the assignee, the general rule is, that he
alone has the right to sue for the damages; but if, by the
nature and terms of the assignment, the assignor is bound to
indemnify the assignee against the breach of such covenants,
it seems that the assignor may sue in his own name.’

 

1 Fairbanks v. Williamson, 7 Greenl. 97. And if the subject of the con-
veyance be an estate in expectancy, by an heir or devisee, and the convey-
ance is lawful, it attaches to the estate when it comes to the grantor, in whose
hands it instantly enures to the benefit of the grantee, and thereupon the
covenant becomes a covenant real. Trull v. Eastman, 3 Met. 121; Somes
v. Skinner, 3 Pick. 52.

2 Jordain v. Wilson, 4 B. & Ald. 266. So a covenant by the grantor of
a mill-pond and land, to draw off the water six days in the year, upon request,
is a covenant real. Morse v. Aldrich, 19 Pick. 449.

3 Dailey v. Beck, 6 Penn. Law Jour. 383.

4 Norman v. Wells, 17 Wend. 136.

5 Watertown v. Cowen, 4 Paige, 510. And see Mann v. Stephens, 10
Jur. 650, S. P. ‘

6 Hemminway v. Fernandez, 13 Sim. 228.

7 Griffin v. Fairbrother, 1 Fairf. 81; Bickford v. Paige, 2 Mass. 460;
Kane v. Sanger, 14 Johns. 89; Niles v. Sawtel, 7 Mass. 444. [.A grantee
in a deed cannot maintain an action upon a covenant of warranty therein,
unless there has been an actual eviction, or what is, in law, equivalent
thereto. Thus, where a grantee in a deed containing a covenant of war-
ranty immediately mortgages back the estate to his grantor, and after-
wards gives him possession under the mortgage, becoming his tenant, he
cannot maintain an action on the covenant of warranty in the deed to
himself, on account of an entry and ouster by one having an older and
better title than his grantor, because such entry and ouster are not against
his possession, but against that of his grantor. Gilman v. Haven, 11 Cush.
330.]
PART Iv.] COVENANT. 263

§ 241. To prove a breach of the covenant of seisin, it is
necessary to show, that the convenantor was not seised in
fact; for this covenant is satisfied by any seisin in fact, though
it were by wrong, and defeasible.’ But though the cove-
nantor was in possession of the land at the time of the con-
veyance, yet if he did not exclusively claim it as his own, the
covenant is broken.? So, if there was a concurrent seisin by
another, as tenant in common ;3 or, if there was an adverse
seisin of a part of the land, within the boundaries described
in the deed.* But if the possession by a stranger was not
adverse, it is no breach.5

§ 242. The covenant of freedom from incumbrances is
proved to have been broken, by any evidence, showing that
a third person has a right to, or an interest in the land grant-
ed, to the diminution of the value of the land, though con-
sistent with the passing of the fee by the deed of convey-
ance.6 Therefore, a public highway over the land ;’ a claim

 

*

1 Marston v. Hobbs, 2 Mass. 433; Bearce v. Jackson, 4 Mass. 408;
Twombly v. Henley, Id. 441; Prescott v. Trueman, Id. 627; Chapel v.
Bull, 17 Mass. +213; Wait v. Maxwell, 5 Pick. 217; Wheaton v. East, 5
Yerg. 41; Willard v. Twitchell, 1 N. Hamp. 177; Backus v. McCoy, 3 Ohio
R. 220. But see Richardson v. Dorr, 5 Verm. 21; Lackwood v. Sturdevant,
6 Conn. 385. And see, as to this covenant, 4 Cruise’s Dig. tit. 32, ch. 26,
§ 48, note, (Greenleaf’s edit.) Ifthe grantor’s seisin is alleged to have been
defeated by an official sale for the non-payment of taxes, the plaintiff must
prove the validity of the assessment and sale, with the same strictness as if
he were the purchaser under the sale, enforcing his title in an éjectment.
Kennedy v. Newman, 1 Sandf. 187.

2 Wheeler v. Hatch, 3 Fairf. 389.

3 Sedgwick v. Hollenback, 7 Johns. 376.

4 Wilson v. Forbes, 2 Dev. 30. But it is not necessary to prove an evic-
tion. Bird v. Smith, 3 Eng. 368.

5 Commonwealth v. Dudley, 10 Mass. 403.

6 Prescott v. Trueman, 4 Mass. 627, 629, per Parsons, C. J. See, as to
this covenant, 4 Cruise’s Dig. tit. 32, ch. 26, § 59, note, (Greenleaf’s ed.)

7 Kellogg v. Ingersoll, 2 Mass. 97, 101; Pritchard v. Atkinson, 3 N.
Hamp. 335; Hubbard v. Norton, 10 Conn. 431.
264 LAW OF EVIDENCE. [PART IV.

of dower ;! a private right of way ;? a lien by judgment ;*
or by mortgage, made by the grantor to the grantee,* or any
mortgagee, unless it be one which the covenantee is bound
to pay;° or any other outstanding elder and better title; °
is an incumbrance, the existence of which is a breach of this
covenant. In these and the like cases, it is the existence of
the incumbrance which constitutes the right of action ; irre-
spective of any knowledge on the part of the grantee, or of
any eviction of him, or of any actual injury it has occasioned
to him. If he has not paid it off, nor bought it in, he will

 

14 Mass. 630. Even though inchoate only. Porter v. Noyes, 2 Greenl.
22; Shearer v. Ranger, 22 Pick. 447.

2 Harlow v. Thomas, 15 Pick. 68; Mitchell v. Warner, 5 Conn. 497.
[And this is so although the existence of the way was well known to the
grantee at the time of the purchase. Butler v. Gale, 1 Williams, (Verm.)
739.]

3 Jenkins v. Hopkins, 8 Pick. 346; Smith v. M’Campbell, 1 Blackf. 100 ;
Hall v. Dean, 13 Johns. 105.

4 Bean v. Mayo, 5 Greenl. 94.

5 Watts v. Welman, 2 N. Hamp, 458; Tufts v. Adams, 8 Pick. 547;
Funk v. Voneida, 11 S. & R. 109; Stewart v. Drake, 4 Halst. 139; Wyman
v. Ballard, 12 Mass. 304.

6 Prescott v. Trueman, 4 Mass. 627; Chapel v. Bull, 17 Mass. 218, 220;
Potter v. Taylor, 6 Verm. 676; Garrison v. Sandford, 7 Halst. 261.

The declaration by a grantee by deed of bargain and sale, against his

grantor for breach of the covenant of freedom from incumbrance, by the
existence of a paramount title, is in this form : —
i in a plea of covenant; for that the said defendant, on the day
of by his deed, [if by indenture it should be so set forth,| duly executed,
acknowledged, and recorded, and by the plaintiff now here produced in
Court, for a valuable consideration therein mentioned, bargained, sold, and
conveyed to the plaintiff [here describe the premises] to have and to hold the
same with the appurtenances to the plaintiff and his heirs and assigns for-
ever ; and therein, among other things, did covenant with the plaintiff (*)
that the said premises were then free from all incumbrance whatsoever.
Now the plaintiff in fact says that, at the time of making the said deed, the
premises aforesaid were not free from all incumbrance; but on the con-
trary the plaintiff avers that at the time of making said deed, one FE. F. had
the paramount and lawful right and title to the same premises ; by reason
whereof the plaintiff has been obliged to expend, and has expended, a great
sum of money, to wit, the sum of in extinguishing the said paramount
and lawful right and title of the said EK. F. to said premises.”

 

 

 

 
PART Iv.] COVENANT. 265

still be entitled to nominal damages, but to nothing more; 1
unless it has ripened into an indefeasible estate; in which
case he may recover full damages.? It is not competent for
the plaintiff to enhance the damages by proof of the dimin-
ished value of the estate, in consequence of the existence of
the incumbrance, as, for example, a prior lease of the prem-
ises, unless he purchased the estate for the purpose of a
resale, and this was known to the grantor at the time of the
purchase?

§ 243. The covenant for quiet enjoyment goes to the pos-
session, and not to the title ; and therefore to prove a breach,
it is ordinarily necessary to give evidence of an entry upon
the grantee, or of expulsion from, or some actual disturbance
in the possession ;* and this, too, by reason of some adverse
right existing at the time of making the covenant, and not of
one subsequently acquired. But it will not suffice to prove

 

1 Tbid.; Delavergne v. Norris, 7 Johns. 358; Stanard v. Eldridge,
16 Johns. 254; Bean v. Mayo, 5 Greenl. 94; Wyman v. Ballard, 12 Mass.
304.

2 Chapel v. Bull, 17 Mass. 2138.

3 Batchelder v. Sturgis, 3 Cush. 201. [A stipulation in a deed poll that
the grantee, his heirs, and assigns, shall erect and perpetually maintain a
fence between the granted premises and the land adjoining, does not create
an incumbrance on the granted premises. Parish v. Whitney, 3 Gray, 516;
Plymouth v. Carver, 16 Pick. 183.]

4 Fraunces’s case, 8 Co. 89; Anon. 1 Com. R. 228; Waldron v. McCarty,
3 Johns. 471; Kortz v. Carpenter, 5 Johns. 120; Webb v. Alexander,
7 Wend. 281; Coble v. Welborn, 2 Dev. 388. And see Safford v. Annis,
7 Greenl. 168 ; 2 Sugd. Vend. 514-522, (10th edit.) ; 4 Cruise’s Dig. tit. 32,
ch. 26, § 51, note, (Greenleaf’s edit.)

5 Ellis v. Welch, 6 Mass. 246; Tisdale v. Essex, Hob. 34; Hurd ».
Fletcher, 1 Doug. 43; Evans v. Vaughan, 4 B. & C. 261; Spencer v. Mar-
riott, 1 B. & C. 457.

The declaration by a grantee against his grantor, for breach of the general
covenant for quiet enjoyment, recites the conveyances, as in the preceding
form, as far as this mark, (*) and proceeds as follows : —

— “that the plaintiff, his heirs and assigns, should and might at all times for-
ever thereafter, peaceably and quietly have, hold, possess, and enjoy said
premises, without let, suit, denial, hindrance, molestation, or interruption by
any person lawfully claiming any right, title, or interest in the same. Now
VOL. IL. 23
266 LAW OF EVIDENCE. [PART IV.

a demand of possession, by one having title ;! nor a recovery
in ejectment;? or in trespass ;° unless there has also been an
actual ouster. If, however, the covenantor himself enters
tortiously, claiming title, it is a breach.* .

§ 244. The covenant of warranty extends only to lawful
claims and acts; and not to those which are tortious;® and
it is restricted to evictions under titles existing at the date of
the covenant.6 A breach of this covenant is proved only by

 

the plaintiff in fact says, that he has not been permitted so to possess and
enjoy the said premises; but on the contrary he avers, that, after the making
of said deed, to wit, on the day of , one E. F., who, at the time of
making said deed, had, and ever since, until the molestation of the plaintiff
hereinafter mentioned, continued to have lawful right and title to said prem-
ises, did enter into the same, and did thence eject, expel, and remove the
plaintiff, and hold him out of possession of the same, contrary to the form
and effect of the covenant aforesaid,” &c.

1 Cowan »v. Silliman, 2 Dev. 46. Nor, a mere forbidding to pay rent.
Witchcot v. Nine, 1 Brownl. 81. And see Hodgskin v. Queensborough,
Willes, 129.

2 Kerr v. Shaw, 13 Johns. 236.

3 Webb v. Alexander, 7 Wend. 281. And see Cushman v. Blanchard,
2 Greenl. 266.

4 Sedgwick v. Hollenback, 7 Johns. 376; 2 Sugd. Vend. 512, (10th edit.)
But not if the entry was without claim of title. Seddon v. Senate, 13 East,
72; Penn v. Glover, Cro. El. 421. [It is a breach if there is a dispossession
by one having superior title, although the entry is not made under process.
Parker v. Dunn, 2 Jones, Law, (N. C.) 203.]

5 4 Cruise’s Dig. tit. 32, ch. 26, § 51, note, (Greenleaf’s ed.); Vaugh.
122; 2 Sugd. Vend. 510, 511, (10th edit.) ; Dudley v. Follett, 3 T. R. 587.

6 Ellis v. Welch, 6 Mass. 246.

Where the assignee of the grantee sues the grantor for a breach of the
covenant of warranty, by an eviction, the declaration will be in this form:—
“in a plea of covenant; for that the said defendant heretofore, to wit, on
the day of , by his deed, by him duly executed, acknowledged, and
recorded, which deed, not being in the possession, custody, or control of the
plaintiff, he is unable to produce in Court, for a valuable consideration
therein mentioned, bargained, sold, and conveyed to one J. S., a certain
parcel of land, [describing it,] to hold the same with the appurtenances, to
him the said J. S., and his heirs and assigns forever; and in and by said
deed the said defendant, among other things, covenanted with the said J. S.,
and his heirs and assigns, to warrant and defend the same premises to the

 

 

 

 
PART IV.] COVENANT. 267

evidence of an actual ouster or eviction; but it need not be
with force ; for if it appears that the covenantee has quietly
yielded to a paramount title, whether derived from a stranger
or from the same grantor, either by giving up the possession,
or by becoming the tenant of the rightful claimant, or has
purchased the better title, it is sufficient. So, if he has been
held out of possession, by one in actual possession under a

 

said J. S. and his heirs and assigns forever, against the lawful claims and
demands of all persons. And the said J. S., afterwards, on the same day,
lawfully entered into said premises, and by virtue of said deed became law-
fully seised of the same; and being so seised, the said J. S. afterwards, to
wit, on the —— day. of , by his deed, by him duly executed, acknowl-
edged, and recorded, and now here by the plaintiff produced in Court, for
a valuable consideration therein mentioned, bargained, sold, and conveyed
the same premises to the plaintiff, to hold the same, with the appurtenances,
to the plaintiff, and his heirs and assigns forever; by force of which deed the
plaintiff, afterwards, and the same day, lawfully entered into the same
premises and became lawfully seised thereof accordingly. But the plaintiff
in fact says, that the said defendant has not warranted and defended the
said premises to the plaintiff, as by his said covenant he was bound to do;
but on the contrary the plaintiff, avers that one E. F., lawfully claiming the
same premises by an elder and better title, afterwards by the consideration
of the Justices of the Court, begun and holden [here describe the term,
&c.] recovered judgment against the plaintiff for his seisin and possession of
said premises, and for his costs, and afterwards, to wit, on the day of
, under and by virtue of a writ of execution duly issued upon said
judgment, the said E. F. lawfully entered into said premises, and thereof
evicted the plaintiff and still lawfully holds him out of the same.”

The breach may be assigned more generally, as an ouster, in the following

form :—
— “ but on the contrary, the plaintiff avers that one E. F., lawfully claiming
the same premises by an elder and better title, afterwards, to wit, on the
day of —~, lawfully entered into the same premises, and ousted the
plaintiff thereof, and still lawfully holds him out of the same.”

1 Emerson v. Propr’s of Minot, 1 Mass. 464; Kelly v. Dutch Church of
Schenectady, 2 Hill, N. Y. Rep. 105; Hamilton v. Cutts, 4 Mass. 349;
Sprague v. Baker, 17 Mass. 586; Clarke v. McAnulty,3 8. & R. 364;
Mitchel v. Warner, 5 Conn. 497; Stewart v. Drake, 4 Halst. 139; Rickert
v. Snyder, 9 Wend. 416; Tufts v. Adams, 8 Pick. 547; Bigelow v. Jones,
4 Mass. 512. See further, 4 Kent, Comm. 471; 10 Ohio R. by Wilcox, p.
330-332, note. If the covenantee yields peaceably to a dispossession, the
burden of proof is on him, to show that the dispossession was by one having
a better title. 4 Mass. 349. ,

 

 

 

 

 

 

 
268 LAW OF EVIDENCE. [PART Iv.

paramount title, at the time of sale, it is said to be a breach.
So, a formal entry by a mortgagee, for foreclosure, though
made under a statute, which does not require that the pos-
session of the mortgagee should be continued, is a breach.”
And if the grantor covenants against all incumbrances, ex-
cept a certain mortgage, which he engages to discharge, and
also covenants generally to warrant’ the premises against
the lawful claims of all persons, he is liable on the latter
covenant, if the grantee is obliged himself to remove this
incumbrance <A judgment in ejectment, recovered by a
stranger, against the covenantee, and an entry under it, with
proof that the covenantor had due notice of the pendency of
the action, and was requested by the covenantee to defend
it, is also sufficient evidence of a breach of this covenant.’
So, if the grantor subsequently conveys to a stranger, who
enters without notice of the prior deed, it is a breach.é

§ 245. A covenant by a lessee, against assigning and un-
derletting, is not broken by any involuntary transfer of the
possession ; as, if it be sold by a sheriff, on execution, or by
assignees in bankruptey, or by an executor;® unless the
assignment is effected by fraud of the lessee, as, by confess-
ing judgment, to the intent that the creditor may seize the

 

1 Witty v. Hightower, 12 S. & M. 478.

2 White v. Whitney, 3 Met. 81. See also Burrage v. Smith, 16 Pick. 56 ;
Norton v. Babcock, 2 Met. 510 ; Ingersoll v. Jackson, 9 Mass. 495.

3 Bemis v. Smith, 10 Met. 194.

4 Hamilton v. Cutts, 4 Mass. 349; Prescott v. Trueman, Ib. 627; Ferrell
v. Alder, 8 Humph. 44. In such case, an actual ouster by writ of possession
has been held immaterial. Williams v. Wetherbee, 1 Aiken, R. 233. The
notice of the suit may be verbal. Collingwood v. Irwin, 3 Watts, -306;
Miner v. Clark, 15 Wend. 425. After which, it seems, the covenantee is
not bound to defend. Jackson v. Marsh, 5 Wend. 44.

5 Curtis v. Deering, 3 Fairf. 499. The covenantee is not bound to buy
in an outstanding paramount title or incumbrance, though it is offered to him
on moderate terms. Miller v. Halsey, 2 Green, (N. J.) Rep. 48; Clarke v.
McAnulty, 38. & R. 364.

6 Doe v. Carter, 8 T. R. 57; Doe v. Beavan, 3 M. & 8. 853; Seers v.
Hind, 1 Ves. 295; [Great Pond Co. v. Buzzell, 39 Maine, (4 Heath,) 173.]
PART IV.| COVENANT, 269

premises in execution.’ Ordinarily, therefore, the plaintiff
must prove a transfer of the possession by some voluntary
act of the defendant. Evidence of the mere fact, that a stran-
ger is in possession of the land, is not alone sufficient proof
of a breach of this covenant ;” but if the stranger claims to
hold as under-tenant of the defendant, it has been held sufh-
cient, primé facie, to maintain the allegation on the part of
the plaintiffs

§ 245 a. Upon a covenant to repair, and issue joined on a
general traverse of the breach, the plaintiff must prove the
actual state of the premises, so as to show that they were
substantially out of repair; and in doing this, he will be
confined to the matters expressly alleged as constituting the
breach. If the covenant is general, to repair and keep in re-
pair, the tenant is not obliged to put in new floors, or the
like, but only to repair the old; and it is sufficient if, by a
timely expenditure of money, he keep the premises in sub-
stantial repair, and, as nearly as may be, in the same state in
which they were at the time of the demise He is bound,
however, under a general covenant “to repair, uphold, and
maintain” a house, to keep up the painting of inside doors,
shutters, &c.;° and also to rebuild it if destroyed by fire, un-
less such casualty is excepted in the covenant, either expressly
or by implication. Besides proving the want of repair, the
plaintiff should also prove the damages thereby sustained ;
which is usually done by the evidence of surveyors, carpen-
_.ters, &c., who have examined the premises, and estimated

 

1 Doe v. Carter, 8 T. R.57. And see, on this covenant, Platt on Cov.
ch. 12, p. 404-443.

2 Doe v. Payne, 1 Stark. R. 86.

3 Doe v. Rickarby, 5 Esp. 4.

4 Soward v. Leggatt, 7 C. & P. 613; Harris v. Jones, 1 M. & Rob. 173 ;
Stanley v. Towgood, 3 Bing. N. C. 4; Gutteridge v. Munyard, 7 C. & P.
129; 1M. & Rob. 334.

5 Monk v. Noyes, 1 C. & P. 265.

6 Bullock v. Dommitt, 6 T. R. 650; Digby v. Atkinson, 4 Campb. 265 ;.
Phillips v. Stephens, 16 Mass. 238; Fowler v. Bott, 6 Mass. 63; Weigall v.
Waters, 6 T. R. 488; Loader v. Kemp, 2 C. & P. 375.

23 *
270 LAW OF EVIDENCE. [PART IV.

the cost of putting them into the state in which the tenant
ought to have left them.! And the Jury may also allow the
owner some compensation for the actual loss of use or profit
of the premises, while they were undergoing such repairs.”

§ 246. The plea of non est factum, to a declaration on an
indenture of lease, is an admission of the plaintiff’s title to
demise2 And generally under this plea, the defendant may
prove that the deed was fraudulent ;* or that it was delivered
as an escrow ;° or, may show any personal incapacity, such
‘as lunacy,® or coverture ;7 and after production of a counter-
part, executed by all the plaintiffs, he may produce the de-
mising part, to prove that it was not executed by them all.8

§ 247. Where issue is joined on a plea of performance, the
defendant assumes the burden of proof, and therefore is ordi-
narily entitled to open and close the case.?

 

1 Penley v. Watts, 7 M. & W. 601.

2 Wood v. Pope, 1 Bing. N. C. 467.

3 Friend v. Eastabrook, 2 W. Bl. 1152.

4 Anon. Lofft, R. 457.

5 Stoytes v. Pearson, 4 Esp. 255.

6 Faulder v. Silk, 3 Campb. 126.

7 Lambart v. Atkins, 2 Campb. 272.

8 Wilson v. Woolfryes, 6 M. & S. 341.

9 Scott v. Hull, 8 Conn. 296. And see ante, Vol. 1, § 74.
PART IV.] CUSTOM AND USAGE. 271

CUSTOM AND USAGE.

§ 248. Cusrom is unwritten law, established by common
consent and uniform practice, from time immemorial ; and it
is local, having respect to the inhabitants of a particular place
or district. It differs from Prescription, in this, that prescrip-
tion is a personal right, belonging to one or a few persons, by
particular designation, as for example, the owners of a certain
parcel of land. The term Usage, in its broadest sense, in-
cludes them both; but is ordinarily applied to trade; desig-
nating the habits, modes, and course of dealing, which are
generally observed, either in any particular branch of trade,
or in all mercantile transactions.

§ 249. We have already: seen,! that, in general, when a
local custom, of a public or general nature, is once estab-
lished by a judgment, the judgment is competent evidence
of the existence of the custom, in all other cases, though the
parties may be different. Hence no person is a competent
witness to prove a local custom, stated on the record, who
would derive a benefit from its establishment.? But in regard
to the proof of usages in any particular trade, persons em-
ployed in the particular trade are held competent witnesses,
as standing indifferent; the usage in question generally affect-
ing alike both their rights and their liabilities. These usages,
also, when once put in issue and found by a Jury, are after-
wards recognized on production of the record; and after hav-
ing been frequently proved, in the course of successive legal
investigations, they are taken notice of by the Courts, with-
out further proof? They are not, however, permitted to

 

1 Ante, Vol. 1, § 405. 2 Ibid.
3 Ante, Vol. 1, § 5; Smith v. Wright, 1 Caines, 43; Consequa v. Willing,
1 Pet. C. C. R. 230; Thomas v. Graves, 1 Const. Rep. 150, [308.]
272 LAW OF EVIDENCE. [PART Iv.

have effect, when they contravene any established general
rule of the law; and therefore evidenee, in proof of any such
usage, is ordinarily inadmissible! The general law-mer-
chant, being part of the Common Law, is recognized by the
Courts without proof.

§ 250. In proof of a local custom, it must be shown to
have existed from time immemorial; to have continued
- without any interruption of the right, though the possession
may have been suspended; to have been peaceably acqui-
esced in; and to be reasonable, certain, consistent with law
and with other acknowledged customs, and compulsory on
all2 The existence of a custom, in one place, is not admis-
sible in proof of its existence in another; unless where the
custom has respect to some general subject common to them
‘both, to which it is merely an incident, such as a general
tenure, and the like But where the question is upon the
manner of conducting a particular branch of trade at one
place, evidence of the manner of conducting the same branch
at another place is admissible; being deemed to fall within
the exception to the rule, as it concerns a matter, in its
nature common to both places.6 So, evidence as to the
profits of mines, or the right to dig turf in fenny lands, in

 

1 Edie v. The East India Co. 2 Burr. 1216, 1222; Homer v. Dorr,
10 Mass. 26, 29; Lewis v. Thacher, 15 Mass. 431; Higgins v. Livermore,
14 Mass. 106 ; Randall v. Rotch, 12 Pick. 107; Eager v. The Atlas Ins. Co.
14 Pick. 141; Perkins v. The Franklin Bank, 21 Pick. 483; Bryant v.
Commonwealth Ins. Co. 6 Pick. 131; The Reeside, 2 Sumn. 568; Bolton v.
Colder, 1 Watts, 360; Newbold v. Wright, 4 Rawle, 195; Stoever v. Whit-
man, 6 Binn. 417; Brown v. Jackson, 2 Wash. C. C. R. 24; Prescott v.
Hubbell, 1 McCord, 94. ‘

2 2 Burr. 1216, 1222.

3 1 Bl. Comm. 76-78, And see Freary v. Cook, 14 Mass. 488; Clayton
v. Corby, 8 Jur. 212; 2 Ad. & El. 813, N. S.; Carr v. Foster, 3 Ad. & El.
581, N. S.; Hilton v. E. of Granville, Dav. & Mer. 614; 5 Ad. & El. 701,
N. S.; Elwood v. Bullock, 6 Ad. & El. 383, N. S.

4 Furneaux v. Hutchins, Cowp. 808; D. of Somerset v. France, 1 Stra.
654, 661, 662.

5 Noble v. Kennoway, 2 Doug. 510.
PART IV.] CUSTOM AND USAGE. 273

one manor, has been admitted in proof of the same right
claimed in another, the subject being thé same.

§ 251. But in regard to the usage of trade, it is not neces-
sary that it should have existed immemorially ; itis sufficient
if it be established, known, certain, uniform, reasonable, and
not contrary to law. These usages, many Judges are of
opinion, should be sparingly adopted by the Courts, as rules
of law, as they are often founded in mere mistake, or in the
want of enlarged and comprehensive views of the full bear-
ing of principles.? Their true office is, to interpret the other-
wise indeterminate intentions of parties, and to ascertain the
nature and extent of their contracts arising not from express
stipulation, but from mere implications and presumptions,
and acts of a doubtful and equivocal character; and to fix
and explain the meaning of words and expressions of doubt-
ful or various senses. Qn this principle, the usage or habit
of trade or conduct of an individual, which is known to the
‘person who deals with him, may be given in evidence to
prove what was the contract between them.5

 

1 Dean, &c. of Ely v. Warren, 2 Atk. 189, per Ld. Hardwicke.

21 Bi. Comm. 75; Todd v. Reid, 4 B. & Ald. 210; Collings v. Hope, 8
Wash. 150; Rapp v. Palmer, 3 Watts, 178; Trott v. Wood, 1 Gall. 443;
Stultz v. Dickey, 5 Binn. 287; Winthrop v. Union Ins. Co. 2 Wash. C. C.
R. 7; United States v. M’Daniel, 7 Pet. 1; Lowry v. Russell, 8 Pick. 360;
Parrott v. Thacher, 9 Pick. 426; Stevens v. Reeves, Id. 198; Thomas v.
Graves, 1 Const. Rep. 150, [308]; Desha v. Holland, 12 Ala. 513; [Com-
monwealth v. Doane, 1 Cush. 611.],

3 2 Sumn. R. 377, per Story, J.; Hone v. Mutual Safety Ins. Co. 1 Sandf.
S. C. R. 137.

4 The Reeside, 2 Sumn. 569; Macomber v. Parker, 18 Pick. 182; Shaw
v. Mitchell, 2 Met. 65; Coit v. Commercial Ins. Co. 7 Johns. 885; Harris v.
Nicholas, 5 Munf. 483; Allegre v. Maryland Ins. Co. 2 G. & J.136. See
also ante, Vol. 1, § 292; Powley v. Walker, 5 T. R. 372; Roe v. Charnock;
Peake’s Cas. 5; Rex v. Navestock, 6 Burr. 719, (Set. Cas.) Evidence of
usage is also admissible to establish a right above and beyond the contract;
even though the contract is by deed. Wigglesworth v. Dallison, 1 Doug.
201.

5 Loring v. Gurney, 5 Pick. 15; Naylor v. Semmes, 4 G.'& J. 274; Noble
v. Kennoway, 2 Doug. 510; [Turner v. Yates, 16 How. U. 8.14; Barrett
274 LAW OF EVIDENCE. [PART Iv.

§ 252. Both customs and usages must be proved by evi-
dence of facts, not of mere speculative opinions; and by

 

v. Williamson, 4 McLean, 597; Baxter v. Leland, 1 Blatch. Ct. Ct. 526;
Hunt v. Carlisle, 1 Gray, 257; Fisher v. Sargent, 10 Cush. 250; Warren
Bank v. Suffolk Bank, Ib. 586; Potter v. Morland, 8 Cush. 384; Clark v.
Baker, 11 Met. 188; Mixer v. Coburn, Ib. 559; Putnam v. Tillotson, 13
Met. 517; Macy v. Whaling Ins. Co. 9 Ib. 354; Baker v. Atlas Bank, Ib.
182; Mussey v. Eagle Bank, Jb. 306; Chicopee Bank v. Eager, Ib. 583 ;
Bradford v. Drew, 5 Ib. 188; Perkins v. Jordan, 35 Maine, 23; Farnsworth
v. Chase, 19 N. H. 534; Knowles v. Dow, 2 Foster, (N. H.) 387; Ib. 71;
Nichols v. De Wolf, 1 Rhode Island, 277 ; Leach v. Beardslee, 22 Conn. 404;
Outwater v. Nelson, 20 Barb. 29; Wall v. East River Ins. Co. 3 Duer, (N.
Y.) 264; Steward v. Scudder, 4 Zabr. 96; Meighen v. Bank, 25 Penn.
State R. (1 Casey,) 288; Ib. 411; Foley v. Mason, 6 Md. 87; Merchants’,
&ec. Ins. Co. v. Wilson, 2 Ib. 217; Fulton Ins. Co. v. Milner, 23 Ala. 420;
Inglebright v. Hammond, 19 Ohio, 887; Campbell v. Hewlitt, 12 Eng. Law
& Eq. 875; Moore v. Campbell, 26 Ib. 522; Cuthbert v. Cumming, 30 Ib.
604; Wigglesworth v. Dallison, 1 Smith’s Leading Cases, (ed. 1844,) 405
(*300) and notes. A usage among manufacturing corporations to give an
honorable discharge to an operative who has worked faithfully with them for
twelve months and has given a fortnight’s notice of an intention to leave,
whereby such operative may obtain employment in other mills at the same
place, does not oblige those corporations to give such discharge in all cases
where such conditions are complied with. The giving of such a discharge is
a matter of judgment and discretion with the corporation. Thurlston v. Suf-
folk Man. Co. 10 Cush. 376.

A policy of insurance which describes the risk as a “machine shop, a
watchman kept on the premises,” does not require a watchman to be kept
there constantly, but only at such times as men of ordinary care and skill in
like business, keep a watchman on their premises; and the usage of similar
establishments, in this respect, may be shown to explain what is ordinary care
and skill. Crocker v. People’s, &c. Ins. Co. 8 Cush. 79.

A usage at an inn for the guests to leave their money and valuables at the
bar or with the keeper of the house, as a condition precedent to the liability
of the innkeeper for the loss thereof, is not binding upon a guest unless he
has actual knowledge or notice of it; and whether he has such knowledge or
notice, is a question of fact for the Jury. Berkshire Woollen Co. v. Proctor,
7 Cush. 417.

A usage, which shows when a voyage is terminated so far as relates to the
payment of premium notes, is not applicable to show when a voyage ter-
minates, with reference to the payment of losses. Meigs v. Mntual, &c. Ins.
Co. 2 Cush. 439. Nor can a usage among the owners of vessels at particular
ports to pay bills, drawn by masters for supplies furnished to their vessels in
foreign ports, bind them as acceptors of such bills. Bowen v. Stoddard, 10
PART Iv.] CUSTOM AND USAGE. 275

witnesses who have had frequent and actual experience of
the custom or usage, and do not speak from report alone.t
The witnesses must speak as to the course of the particular
trade; they cannot be examined to show what is the law of
that trade? And though a usage is founded on the laws or
edicts of the government of the country where it prevails,
yet still it may be proved by parol.’ It has also been held,
that the testimony of one witness alone, is not sufficient to
establish a usage of trade, of which all dealers in that line
of trade are bound to take notice.*

 

Met. 629. Nor can a general usage, and not the usage of any particular place,
or trade, or class of dealers, or course of dealing, be given in evidence to con-
trol the rules of law. Strong v. Bliss, 6 Met. 393. No usage and no agree-
ment, tacit or express, of the parties to a promissory note, as to presentment,
demand, and notice, will accelerate the time of payment, and bind the
maker to pay it at an earlier day than that which is fixed by the law that
applies to the note.- Mechanics’ Bank, &c. v. Merchants’ Bank, &c. 6 Cush.
18; Adams v. Otterback, 15 How. U. S. 539; Bowen v. Newell, 4 Selden,
(N. ¥.),190; 2 Duer, 584. Nor can custom or usage ever be given in evi-
dence, to vary or control an express contract. Evans v. Myers, 25 Penn.
State R. (1 Casey,) 114; Linsley v. Lovely, 26 Vt. (3 Deane,) 123 ; Swamps-
cott Machine Co. v. Partridge, 5 Foster, (N. H.) 369; Wadsworth v. Allcott,
2 Selden, (N. Y.) 64; Dixon v. Dunham, 14 Il. 324.]

1 Edie v. E. Ind. Co. 2 Burr. 1228, per Wilmot, J.; Savill v. Barchard,
4 Esp. 54, per Ld. Kenyon; Austin v. Taylor, 2 Ohio R. 282.

2 Ruan v. Gardiner, 1 Wash. C. C. R. 145; Winthrop v. Union Ins. Co.
2 Wash. C.C. R. 7; Austin v. Taylor, 2 Ohio R. 282.

3 Livingston v. The Maryland Ins. Co. 7 Cranch, 500, 589; Drake v. Hud-
son, 7H. & J. 399.

4 Wood v. Hickok, 2 Wend. 501; Parrott v. Thacher, 9 Pick. 426;
Thomas v. Graves, 1 Const. Rep. 150, [308.] The testimony of one wit-
ness is proof of commercial usage, if he has full means of knowledge, and his
testimony is explicit and satisfactory. By Foot, J. Vail v. Rice, 1 Selden,
(N. ¥.) 155. The testimony of one of the directors of an insurance com-
pany as to the practice of the company in regard to giving consent to second
insurances, so far as his knowledge went, is not sufficient to bind the insured
who has no knowledge thereof. Goodall v. New Eng. Fire Ins. Co. 5 Fos-
ter, (N. H.) 169.] ,
276 LAW OF EVIDENCE. [PART Iv.

DAMAGES.

§ 253. Damaczs are given as a compensation, recompense,
or satisfaction to the plaintiff, for an injury actually received
by him from the defendant. They should be precisely com-
mensurate with the injury; neither more nor less ;1 and this
whether it be to his person or estate? Damages are never

 

1 Co. Lit. 257 a; 2 Bl. Comm. 488; Rockwood v. Allen, 7 Mass. 256, per
Sedgwick, J.; Bussy v. Donaldson, 4 Dall. 207, per Shippen, C. J.; 3 Amer.
Jur. 257.

2 Since the first edition of this volume, Mr. Sedgwick has given to the
profession a valuable treatise on the Law of Damages, in which he denies
the soundness of the general rule here stated; and lays down the broad
proposition that, “ wherever the elements of fraud, malice, gross negligence,
or oppression mingle in the controversy, the law, instead of adhering to the
system, or even the language of compensation, adopts a wholly different rule.
It permits the Jury to give what it terms punitory, vindictive, or exemplary
damages; in other words, blends together the interest of society and of the
agerieved individual, and gives damages not only to recompense the sufferer,
but to punish the offender.” Sedgwick on Damages, p. 39. However this
view may appear to be justified by the general language of some Judges,
and by remarks gratuitously made in delivering judgment on other questions,
it does not seem supported to that extent by any express decision on the point
and is deemed at variance not only with adjudged cases, but with settled
principles of law. This will be apparent from an examination of the au-
thorities on which the learned author relies. e

In the first case cited, in support of his position, that of Huckle v. Money,
2 Wils. 205, which was an action to try the legality of an arrest under a
general warrant issued by the Secretary of State, the Jury found a verdict
for £300, which the defendant moved the Court to set aside as excessive.
But the motion was denied, on the ground that the damages were properly
left at large to the Jury ; with instructions that they were not bound to any
certain rule, but were at liberty to consider all the circumstances of oppres-
sion and arbitrary power by which the great constitutional right of the plain-
tiff was violated, in this attempt to destroy the liberty of the kingdom. All
which the Jury were thus permitted to consider, were circumstances, going
in aggravation of the injury itself which the plaintiff had received,
and so were admissible under the rule as stated in §§ 266, 272, of the text.
PART IV.] DAMAGES. QT

given in real actions; but only in personal and mixed actions.
In some of the American States, the Jury are authorized by

 

The case of Tullidge v. Wade, 3 Wils. 18, was of the same class. It was
trespass for breaking and entering the plaintiff’s house and debauching his
daughter; and the Jury were instructed to take into consideration the plain-
tiff’s loss of her service, and the expenses of her confinement in his house.
The verdict, which was for £50, was complained of, as excessive; but the
Court thought otherwise, “ the plaintiff having received the insult in his own
house where he had civilly received the defendant, and permitted him to
make his addresses to his daughter.” And it was observed by Bathurst, J.,
that “In actions of this nature, and of assaults, the circumstances of time
and place, when and where the insult is given, require different damages, as
it is a greater insult to be beaten upon the Royal Exchange than in a private
room.” It thus appears that in this case the damages were limited to the
extent of the injury received by the plaintiff ; and that the remark of Wilmot,
C. J., relied on by the learned author, was altogether gratis dictum. In Doe
v. Filliter, 13 M. & W. 47, which was trespass for mesne profits, the only
question was, whether in estimating the costs of the ejectment, as part of the
plaintiff ’s damages, the plaintiff was confined to the costs taxed, or might be
allowed the costs as between attorney and client. The remark of Pollock,
C. B., respecting what are called “ vindictive damages,” though wholly gra-
tuitous, is explained by himself to mean only that the Jury may “take all
the circumstances into their consideration,” namely, the circumstances of the
injury inflicted, so far as they affected the plaintiff. The like may be ob-
served of what Mr. Justice Washington said in Walker v. Smith, 1 Wash.
C. C. R. 152; which was an action against the plaintiff’s factor, to recover
the balance due to the plaintiff for goods which the factor had sold without
taking collateral security, in violation of orders, the purchaser proving insol-
vent and partial payment only having been obtained. The question was,
whether the Jury might assess damages in their discretion, for less than the
plaintiff's actual loss, taking into consideration all the favorable circumstances
on the defendant’s part; or whether they were bound to give the plafntiff the
precise sum which he had lost by the violation of his orders. And the Judge
instructed them that the latter was the sole measure of damages; remarking,
passingly, that in suits for vindictive damages the Jury acted without con-{
trol, because there was no legal rule by which to measure them. His mean-}
ing apparently was, that in actions “ sounding in damages,” the Court had no,
control over the sound discretion of the Jury; but that where the damages
were susceptible of a fixed and certain rule, the Jury were bound by the
instructions of the Court. The case of Tillotson 7. Cheetham, 3 Johns. 56,
isalso relied upon. This was case for libel; in which the Jury were in-
structed by Kent, C. J., “ that the charge contained in the libel was calcu-
lated not only to injure the feelings of the plaintiff, but to destroy all confi-
dence in him as a public officer; and in his opinion demanded from the
VOL. I. 4 24
278 LAW OF EVIDENCE. [PART Iv.

statutes to assess, in real actions, the damages, which by the
Common Law are given in an action of trespass for mesne
profits ; but this only converts the real into a mixed action.

 

Jury exemplary damages, as well on account of the nature of the offence
charged against the plaintiff, as for the protection of his character as a public
officer, which he stated as a strong circumstance for the increase of damages; ”
adding “that he did not accede to the doctrine that the Jury ought not to
punish the defendant, in a civil suit, for the pernicious effects which a pub-
lication of this kind was calculated to produce in society.” Here the grounds
of damages positively stated to the Jury, were expressly limited to the de-
gree of injury to the plaintiff, either in his feelings, or in his character as a
public officer. The rest is mere negation. The Jury were not instructed to
consider any other circumstances than those which affected the plaintiff him-
self; though these, they were told, demanded exemplary damages. In this
view, all damages, in actions, ex delicto, may be said to be exemplary, as
having a tendency to deter others from committing the like injuries. These
instructions, therefore, were in accordance with the rule already stated. In
support of them, the Chief Justice relies on Huckle v. Money, and Tullidge
v. Wade. He also refers to Pritchard v. Papillon, 3 Harg. St. Tr. 1071; 10
Howell, St. Tr. 319, 370, S. C., which was essentially a controversy between
the crown and the people, before “the infamous Jeffries ;” who told the
Jury that “the government is a thing that is infinitely concerned in the
case that makes it so popular a cause ;” and pressed them, with disgraceful
zeal, to find large damages for that reason, and for their compliance in find-
ing £10,000, which was the amount of the ad damnum, he praised them as
men of sense, to be greatly commended for it. The ruling of that Judge, in
favor of the crown, will hardly be relied upon at this day as good authority.
But in Tillotson v. Cheetham, the learned Chief Justice, in saying that
the actual pecuniary damages in actions for tort, are never the sole rule of
assessment, probably meant no more than this, that the Jury were at lib-
erty to consider all the damages accruing to the plaintiff from the wrong
done, without being confined to those which are susceptible of arithmetical
computation. The remark of Spencer, J., beyond this was extrajudicial.
In Woert v. Jenkins, 14 Johns. 352, which was trespass for beating the
plaintiff ’s horse to death, with circumstances of great barbarity, the Jury
were told that they “hada right to give smart money; by which nothing
more seems to have been meant than that they might take into consideration
the circumstances of the cruel act, as enhancing the injury to the plaintiff
by the laceration of his feelings. In/the Boston Manufacturing Company v.
Fiske, 2 Mason, R. 119, the only question was whether, in case for infringing
a patent, the plaintiff might recover, as part of his actual damage, the fees
paid to his counsel for vindicating his right in that action. The observations
of the learned Judge, quoted by Mr. Sedgwick, were made with reference to
the practice in Admiralty, in cases of marine torts and prize, where a broader
PART: IV.] DAMAGES. 279

§ 254, All damages must be the result of the injury com-
plained of; whether it consists in the withholding of a legal

 

discretion is exercised than in Courts of Common Law, the Court frequently
settling in one suit all the equities between the parties in regard to the sub-
ject-matter. The next case adduced is that of Whipple v. Walpole, 10 New
Hamp. R. 130, which was a case against the town of Walpole to recover
damages for an injury arising from the defective state of a bridge, which
the defendants had grossly neglected to keep in repair. The bridge had
broken down while the plaintiff’s stage-coach was passing over, in conse-
quence of which his horses were destroyed. The Jury were instructed,
“that for ordinary neglect the plaintiff could not recover exemplary dam-
ages; but that such damages might be allowed in the discretion of the Jury,
in case they believe there had been gross negligence on the part of the de-
fendants.” The question seems in fact to have been, whether the Jury were
confined to the value of the horses, or might take into consideration all the
circumstances of the injury. The sole question beforé the Court in bank
was, whether the above instruction was correct ; and they held that it was.
The remark, that the Jury might give “damages beyond the actual injury
sustained, for the sake of the example,” though gratuitous and uncalled for,
seems qualified by the subsequent observation, that the Jury, in cases of
gross negligence, “ were not bound to be very exact in estimating the amount
of damages ;” and probably the learned Judges meant to say no more than
that, in such cases, the Court would not control the discretion of the Jury (
but would leave them at liberty to consider all the circumstances of the
injury, and award such damages as they thought proper. See, to the same
effect, Kendall v. Stone, 2 Sandf. S. C. R. 269; Tifft v. Culver, 3 Hill, 180.
In Linsley v. Bushnell, 15 Conn. R. 225, which was a case for an injury to
the plaintiff’s person, occasioned by an obstruction left in the highway by
the wanton negligence of the defendant, the question was, whether the J ury,
in the estimation of damages, were restricted to the loss of the plaintiff’s
time, and the expenses of his cure, &c., or might also allow, as part of his
damages, the necessary trouble and expenses incurred in the prosecution of
his remedy by action. And the Court held that these latter were fair sub-
jects for their consideration. “The circumstances of aggravation or miti-
gation,” said the Court ; “ the bodily pain; the mental anguish; the injury to
the plaintiff’s business and means of livelihood, past and prospective; all
these, and many other circumstances, may be taken into consideration by the
Jury, in guiding their discretion in assessing damages for a wanton personal
injury. But these are not all that go to make up the amount of damage
sustained. The bill of the surgeon, and other pecuniary charges, to which
the plaintiff has been necessarily subjected by the misconduct of the defend-
ant, are equally proper subjects of consideration.” And it is in express
reference to the propriety of allowing the trouble and expense of the remedy,
that the observation respecting vindictive damages, or smart-money, quoted
280 LAW OF EVIDENCE. [PART Iv.

right, or the breach of a duty legally due to the plaintiff.
Those which necessarily result, are termed general damages,

 

by Mr. Sedgwick, seems to have been made. For the learned Judge imme-
diately cites, in support of his remark, certain authorities, which will here-
after be mentioned, not one of which warrants the broad doctrine which is
now under consideration ; and he concludes by quoting from one of them,
with emphasis, the admission, that “ where an important right is in question,
in an action of trespass, the Court have given damages to indemnify the
party for the expense of establishing it.” This is conceived to be the extent
to which the law goes, in civil actions for damages, beyond the circumstances
of the transaction.

The learned author further observes, that the doctrine he lays down has
been fully adopted by the Supreme Court of the United States; and cites
Tracy v. Swartwout, 10 Peters, R. 80. That was an action of trover against
a collector of the revenue, for certain casks of syrup of sugar-cane, which
the importer had offered to enter and bond at the rate of fifteen per cent.
ad valorem, but the collector, acting in good faith, required bond for a duty
of three cents per pound. The importer refusing to do this, the goods re-
mained in the hands of the defendant for a long time, waiting the decision
of the Secretary of the Treasury; who, being of opinion that the lighter
duty was the legal one, they were accordingly delivered up to the importer
at that rate of duty ; but in the mean time had become deteriorated by grow-
ing acid. The Judge of the Circuit Court instructed the Jury, that the cir-
cumstances of the dispute ought not to subject the collector to more than
nominal damages; to which exceptions were taken. The sole qnestion on
this subject was, whether the plaintiff was entitled to the damages he had
actually sustained ; and the Supreme Court held that he was so entitled. It
was in reference to this question only, that the terms exemplary and compen-
satory damages were used ; the question whether, in any case, damages could
be given by way of punishment alone, not appearing to have crossed the
minds either of the Judges or the counsel.

The last case cited by the author is that of The Amiable Nancy, 3 Wheat.
546, which was a libel for-a marine tort, brought by neutrals against the
owners of an American privateer for illegally capturing their vessel as
prize, and for plundering the goods on board. The question was, whether
the owners of the privateer, not having in any respect participated in the
wrong, were liable for any damages beyond the prime cost or value of the
property lost, and, in case of injury, for the diminution in its value, with
interest thereon; and the Court held, that they were not; and accordingly
rejected the claim for all such damages as rested in mere discretion. To
what extent the immediate wrongdoers might have been liable, was a
question not before the Court; yet it is to be noted, that, in the passing
allusion which the learned Judge makes to their liability, he merely says
that, in a suit against them, it might be proper to go yet farther, in the shape
PART IV.| DAMAGES. 281

being shown under the ad damnum, or general allegation of
damages, at the end of the declaration; for the defendant must

 

of exemplary damages, but does not say that it would be; for his attention
was not necessarily drawn to that point.

The case also of Grable v. Margrave, 3 Scam. 372, has been elsewhere ad-
duced in support of the rule now controverted. It was an -action upon the
case, for seduction of the plaintiff’s daughter; in which the Judge permitted
the plaintiff to offer evidence both of his own poverty and of the pecuniary
ability of the defendant; to which ruling the defendant took exception. And
the Court held the ruling right; observing, that the father was entitled to
recover not only for the loss of service, and the actual expenses, but for the
dishonor and disgrace cast upon him and his family, and for the loss of the
society and comfort of his daughter. Clearly this decision was in perfect
consonance with the doctrine in the text, § 269; but the remark of the
learned Judge who delivered the opinion of the Court, that “in vindictive
actions, the Jury are always permitted to give damages, for the double pur-
pose of setting an example, and of punishing the wrongdoer,” was uncalled
for by the case in judgment, and therefore cannot be imputed to the Court.
In Cook v. Ellis, 6 Hill, (N. Y.) R. 466, the question seems to have been be-
tween actual and exemplary damages, in the popular sense of those words. It
was an action of trespass, for an assault and battery. The defendant had
already been indicted and fined $250 for the act; and he insisted that this
was a bar to all further claim of the plaintiff, “ beyond actual damages ;” but
the Judge told the Jury, that “ these proceedings did not prevent them from
giving exemplary damages, if they chose; though the fine and payment were
proper to be considered, in fixing the amount to be allowed the plaintiff.”
The judgmentis reported in a per curiam opinion; but it appears that the mo-
tion of the defendant for a new trial was denied; and the Court are reported
as saying, among other things, that “smart-money allowed by a Jury, and a
fine imposed at the suit of the people, depend on the same principle. Both
are penal, and intended to deter others from the commission of the like crime.
The former, however, becomes incidentally compensatory for damages, and
at the same time answers the purposes of punishment.” From this and other
expressions, it may well be inferred, that by actual damages the Court meant
those which were susceptible of computation ; and that by exemplary damages,
or smart-money, they intended those damages which were given to the plain-
tiff for the circumstances of aggravation attending the injury he had received,
and going to enhance its amount, but which were left to the discretion of the
Jury, not being susceptible of any other rule. But as a decision, the case ex-
tends no farther than this, that in an action for trespass to the person, the pay-
ment of a fine, upon a criminal conviction for the same offence, cannot go in
mitigation of the damages to which the plaintiff is entitled. The case of John-
son v. Weedman, 4 Scam. 495, sometimes also cited, is still less to the point.

24 *
282 LAW OF EVIDENCE. [PART IV.

be presumed to be aware of the necessary consequences of his
conduct, and therefore cannot be taken by surprise in the proof

 

It was trover for a horse, hailed to the defendant for agistment, and used by
him without leave, but under circumstances entitling the plaintiff to no more
than nominal damages. And the Jury having found for the defendant, the
Court refused to disturb the verdict. To these may be added the case of
McNamara y. King, 2 Gilm. 432.

From this examination of the authorities, adduced in support of the posi-
tion, that, in the cases alluded to, damages may be given purely by way of
punishment, irrespective of the degree and circumstances of injury to the

- plaintiff, it is manifest that it has not the countenance of any express de-
‘cision upon the point, though it has the apparent support of several obiter
dicta, and may seem justified by the terms “exemplary damages,” ‘“ vindic-
tive damages,” “smart-money,” and the like, not unfrequently used by Judges,
but seldom defined. But taken in the connection in which these terms have
been used, they seem to be intended to designate in general those damages
only which are incapable of any fixed rule, and lie in the discretion of the
Jury; such as damages for mental anguish, or personal indignity and dis-
grace, &c., and these, so far only as the sufferer is himself affected. If more
than this was intended, how is the party to be protected from a double pun-
ishment ? For after the Jury shall have considered the injury to the public,
in assessing damages for an aggravated assault, or for obtaining goods by
false pretences, or the like, the wrongdoers are still liable to indictment and
fine as well as imprisonment, for the same offence. See Warren v. Austin,
4 Cush. 273.

This view of the true meaning of those terms was taken by Smith, J., in
Churchill v. Watson, 5 Day, R. 144. It was trespass de bonis asportatis,
committed with malice, and with circumstances of peculiar aggravation, to
prevent the plaintiff from completing a contract for building a vessel. And
the question was, whether the Jury were confined to the value of the prop-
erty taken, and presumptive damages for the force only; or whether they
might consider all the aggravating circumstances attending the trespass, and
the plaintiff’s actual damage sustained by it. The Court held the latter.
The learned Judge remarked that, “in actions founded in tort, the first ob-
ject of a Jury should be to remunerate the injured party for all the real
damage he has sustained. In doing this, the value of the article taken or
destroyed forms one item; there may be others, and in this case I think
there were others.” He then mentions the interruption and delay, which
occurred in building the vessel, as of the class of damages to which he
alludes, and adds that he shall not attempt to draw the line between con-
sequences which may properly influence a Jury in assessing damages, and
those which are so far remote and dependent upon other causes, that they
cannot be taken into consideration. “In addition,” he observes, “to the
aciual damage,” (meaning doubtless, from the connection, the direct pecuni-
PART IV.] DAMAGES. 283

of them. Some damages are always presumed to follow from
the violation of any right or duty implied by law; and there-

 

ary damage above alluded to,) “ which the party sustains in actions founded
in tort, the Jury are at liberty to give a further sum, which is sometimes
called vindictive, sometimes exemplary, and at other times presumptive dam-
ages. These, from their nature, cannot be governed by any precise rule,
but are assessed by the Jury, upon a view of all the circumstances attending
the transaction.” He afterwards says, “ Indeed I know of no such thing as
presumptive damages for force. It is a wrong, for which the law presumes
damages, and the amount will depend on the nature, extent, and enormity of
the wrong ; but force partakes not of the nature of right or wrong, in such
a manner that the law can raise any presumption.” A similar view of the
rule of damages in torts had previously been taken by the Court in Edwards
v. Beach, 3 Day, R. 447, which was trespass for destroying a tavern-
keeper’s sign; the plaintiff claiming damages commensurate with the injury,
and the defendant resisting all but the value of the sign. So, in Denison v.
Hyde, 6 Conn. 508, which was trespass for carrying away the plaintiff’s
vessel, the rule was held to be, that in tort, ‘not only the direct damage,
but the probable or inevitable damages, and those which result from the
aggravating circumstances altending the act, are proper to be estimated by
the Jury.” So, in Treat v. Barber, 7 Conn. R. 274, which was trespass,
the defendant having broken open the plaintifi’s chest, containing her wear-
ing apparel, and used language, in relation to the contents of it, that wounded
her feelings, it was held, that these circumstances were proper to be con-
sidered by the Jury, as aggravating the injury, and so increasing the dam-
ages. In Merrills v. The Tariff Manuf. Co. 10 Conn. R. 384, which was
an action on the case, the Court referred to the malice, wantonness, and
spirit of revenge and ill-will, with which the act was done, and observed,
that “these circumstances of aggravation may, with great propriety, be
considered in fixing the remuneration to which the plaintiff is entitled.” The
same view of the true meaning and limit of the term “ vindictive damages”
was taken by Lord Abinger, C. B., in Brewer v. Dew, 11 M. & W. 625,
which was trespass for groundlessly seizing and taking the plaintiff’s goods,
per quod he was annoyed and injured in his business, and believed to be in-
solvent, and certain lodgers left his house, &c. The defendant pleaded the
bankruptcy of the plaintiff in bar of the action; to which the plaintiff de-
murred ; thus raising the question, whether the damages passed to the as-
signees. And the Lord Chief Baron said, “ The substantial ground on which
this case is to be decided is this, — whether, on this declaration as it stands,
the Judge could give vindictive damages for the seizing and taking of the goods
beyond their value. For the breaking and entering it is admitted they might
give damages beyond the amount of the actual injury ”— (evidently mean-
ing, beyond the injury to the property). “ Now I think, that under this de-
claration the plaintiff might give evidence to show that the entering and the

~
~

284 LAW OF EVIDENCE. [PART Iv.

fore the law will in such cases award nominal damages, if
none greater are proved!’ But where the damages, though

 

*
seizure of goods were made under a false and unfounded pretence of a legal
claim, and that thereby the plaintiff was greatly annoyed and disturbed in car-
rying on his business, and was believed to be insolvent, and that in conse-
quence, his lodgers left him. Might not the Jury then give vindictive dam-
ages for such an injury, beyond the mere value of the goods?” Here it is
plain, that by “ vindictive damages” the learned Judge intended only the
damages which the plaintiff had sustained, beyond the value of his goods; and
not those, if any, for any supposed injury to the public at large. Such also
was plainly the sense in which Mr. Justice Story used this term in Whitte-
more v. Cutter, 1 Gall. 483. “By the terms‘ actual damage,’” said he, “in
the statute, (referring to the patent act,) are meant such damages as the
plaintiffs can actually prove, and have in fact sustained, as contradistinguished
to mere imaginary or exemplary damages, which, in personal torts, are
sometimes given. In mere personal torts, as assaults and batteries, defa-
mation of character, &c., the law has, in proper cases, allowed the party to
recover not merely for any actual injury, but for the mental anziety, the

| public degradation and wounded sensibility, which honorable men fe: at vio-

fe,

lations of the sacredness of their persons and characters.” It seems superflu-
ous to state at large the peculiar cases in which a similar rule has been
laid down. It was emphatically but briefly stated by Williams, C. J., in
Bateman v. Goodyear, 12 Conn. R. 580, which was trespass for an aggra-
vated forcible entry, in these words: “ What then is the principle upon
which damages are given, in an action of trespass? The party is to be
indemnified tor what he has actually suffered; and then all those circum-
stances, which give character to the transaction, are to be weighed and con-
sidered.” THe cites the above case of Churchill v. Watson, and refers to
Bracegirdle v. Orford, 2 M. & S. 77, where the circumstances of the entry
into the plaintiff’s house, namely, upon a false charge of concealment of
stolen goods, to the injury of her reputation, were held proper for the con-
sideration of the Jury; Le Blanc, J., remarking, “ that it is always the
practice to give in evidence the circumstances which accompany and give a
character to the trespass.” The party is to be indemnified ; nothing more.
But every circumstance of the transaction, tending to his injury, is to be
considered. At this limit the Jury are to stop ; ~ a limit carefully marked
by the Court in Coppin v. Braithwaite, 8 Jur. 875. They may weigh every
fact which goes to his injury, whether in mind, body, or estate ; but are not at
liberty to consider facts which do not relate to the injury itself, nor to its
consequences to the plaintiff. In other words, they cannot go beyond the
issue; which is the guilt of the defendant, and the damage it did to the

1 Whittemore v. Cutter, 1 Gall. 443, per Story, J. And see Sedgwick on
Damages, Ch. II.
PART IV.] DAMAGES. 285

_

the natural consequences of the act complained of, are not
the necessary result of it, they are termed special damages ;

,

 

plaintiff; for this only did the defendant come prepared to meet. Such
plainly was the principle of the decision in the cases already cited ; as it also
was in Hall v. Conn. R. Steamboat Co. 13 Conn. R. 320, which was case
for an inhuman injury to a passenger; in Southard v. Rexford, 6 Cowen, R.
264, which was for breach of a promise of marriage; in Major v. Pulliam, 3
Dana, R. 592, which was trespass quare clausum fregit ; and in Rockwood
v. Allen, 7 Mass. 254, which was case for the default of the sheriff ’s deputy.
In all these cases there were circumstances of misconduct and gross demerit
on the part of the defendant, richly deserving punishment in the shape of a
pecuniary mulct, and fairly affording a case for damages on that ground
alone; yet in none of them do the Court intimate to the Jury that they may
assess damages for the plaintiff to any amount more than commensurate with
the injury which he sustained. See, also, Matthews v. Bliss, 22 Pick. 48.
The most approved text-writers, also, justify this rule of damages. ‘Thus
Blackstone, 2 Bl. Comm. 438, defines damages as the money “ given to a
man by a Jury, as a compensation or satisfaction for some injury sustained ;
as for a battery, for imprisonment, for slander, or for trespass.” Hammond,
Law of Nisi Prius, p. 33, limits the remedy, by an action of trespass, to the
recovery of “acompensation for the injury sustained.” Id. p.43-48. And
it is worthy of remark, that Ch. Baron Comyns, in treating expressly of
damages, nowhere intimates a power to assess them beyond this. 3 Com.
Dig: Damages, E. The same opinion was entertained by Ld. Denman, who
observed that “ The principle, on which actions are maintainable, is not the
punishment of guilty persons, but compensation to innocent sufferers.” Fil-
liter v. Phippard, 12 Jur. 202, 204; 11 Ad. & El. 356, N.S. Dr. Ruther-
forth, also, defines “damages” with equal strictness. “ By damage, we
understand every loss or diminution of what is a man’s own, occasioned by
the fault of another.” 1 Ruthf. Inst. b.1,ch.17, § 1, p. 385, (Phil. ed.) 1799.
He follows Grot. De Jur. Bel. lib. 2, cap. 17, § ii. This chapter of Ruther-
forth is a precise and luminous statement of the principles on which dam-
ages ought to be computed; but nowhere countenances the position of Mr.
Sedgwick. In the only passage which he has cited, as looking that way,
viz. a paragraph in § xiv. -p. 400, the author is speaking of the rule of rep-
aration where there is no malice; and in stating the degree of fault, he thinks
that the grossest faults may well.deserve punishment; but he does not there
intimate how the punishment should be inflicted. The whole passage is as
follows: “The obligation, to make reparation for damages done by our
means, is not confined to those actions only which are criminal enough to
subject us to punishment. Though there is no degree of malice in an
action, by which another is injured, yet it may arise from some faulty neglect
or imprudence in him, who does it, or is the occasion of its being done; and
when any person has suffered damage, for want of his taking such care, as
286 LAW OF EVIDENCE. [PART lv.

which the law does not imply; and, therefore, in order to
prevent a surprise upon the defendant, they must be particu-

 

he ought to have taken, the same, law, which obliged him, as far as he was
able to avoid doing harm to any man, cannot but oblige him, when he' has
neglected this duty, to undo, as well as he can, what harm he has been the
occasion of; that is, to make amends for the damage, which another has
sustained through his neglect.

“ Those faults which consist in neglect, are sometimes divided into three
degrees: a great fault, which is such a neglect, as all men may well be sup-
posed and ought to guard against; a small fault, which is such a neglect, as
discreet and diligent men are not usually guilty of; and the smallest fault,
which is such a neglect, as the most exact and most prudent take care to
avoid.

“ Indeed, in many instances of gross faults, it is so difficult to distinguish
between the mere neglect and a malicious design, that, besides the demand
of reparation for damages done, some punishment may reasonably be in-
flicted upon the person so offending.

“ Sometimes, and especially in what may seem faults of the lower degrees,
the damage, which arises from our supposed neglect, will be found upon
inquiry to have rather been owing to the neglect of the person who suffers
it; and then we are not only clear from all guilt that may subject us to
punishment, but from all blame, that might oblige us to make reparation.”
See Sedgwick on Damages, p. 488, note.

On the contrary, Dr. Rutherforth, a little farther onward, in the same
book, ch. 18, expressly denies the right of the party injured to anything
more than compensation for the damages he has sustained. He says,—~ As
the heirs of the criminal have no claim to such goods, as he loses in the way
of punishment, so neither has the injured person any, considered merely
as the injured person. He has indeed a right to so much of the criminal’s
goods, as_ will make him amends for the damage which he has suffered ;
but no reason can be given, why he should have a right to more; unless
some positive law has given him such a right. The ends which justify pun-
ishment, will by no means extend his claim any farther than this. The
criminal, by suffering in his goods, may be discouraged or prevented from
offending again; but a design to discourage or prevent him from offending
again can be no ground for that person, whom he has injured by offending
once, to claim property in the goods, which he is deprived of. The ends of
punishment may be answered by taking the criminal’s goods from him; but
these ends do not require, that the property, which he loses, should be
vested in the person whom he has injured.” Sce 1 Rutherforth’s Institutes,
b. 1, ch. 18, § xiv. p. 434. ?

It was solely upon this ground of compensation to the plaintiff for the
injury to his feelings by the very insulting conduct of the defendant, that
the verdict was held good in Merest v. Harvey, 5 Taunt. 442. Ld. Kenyon
PART Iv.] DAMAGES. 287

larly specified in the declaration, or ‘the plaintiff will not be
permitted to give evidence of them at the trial But where

 

has sometimes been quoted as having said, that though a plaintiff may not
have sustained an injury by adultery, to a given amount, yet that large
damages, for the sake of public example, should be given. And this sup-
posed opinion of his was alluded to in the case of Markham v. Fawcett.
But Mr. Erskine, who was for the plaintiff in that action, protested that
“he never said any such thing.” “ He said that every plaintiff had a right
to recover damages up to the extent of the injury he had received ; and that
public example stood in the way of showing favor to an adulterer, by re-
ducing the damages below the sum which the Jury would otherwise consider
as the lowest compensation for the wrong.” 2 Eirskine’s Speeches, p. 9.
The general rule, as thus limited, was recognized in Gunter v. Astor, 4 J. B.
Moore, p. 12, where the defendants, who were rival manufacturers in the
same trade with the plaintiff, had invited his company of servants to a din-
ner, got them intoxicated, and induced them to sign an agreement to leave
the plaintiff’s service and enter their own, which they did. The action was
in case for conspiracy ; and Ld. C. J. Dallas “left it to the Jury to give
damages commensurate with the injury the plaintiff had sustained.” A new
trial was moved for on the ground, that as the plaintiff’s men worked by the
piece only, and not by a contract on time, the plaintiff was entitled to dam- .
ages only for the half day they spent at the dinner; whereas the Jury had
given £1600, being the proved value of two years’ profits. But the mo-
tion was denied, on the ground that the plaintiff was entitled to recover

1 1 Chitty on Plead. 328, 346, 347, (4th edit.) ; Baker v. Green, 4 Bing.
317; Pindar». W dsworth, 2 Hast, 154; Armstrong v. Percy, 5 Wend. 538,
539, per Marcy, J.; 2 Stark. on Slander, 55-58, [62~-66,] by Wendell;
Dickinson v. Boyle, 17 Pick. 78. In an action for breach of a special agree-
ment respecting the assignment of a certain lease and fixtures, under the
allegation that the plaintiff “had been necessarily put to great expenses,”
he was permitted to-give evidence of charges which he had become liable to
pay an attorney, and a value for work done in respect to the premises in
question, though the charges were not paid until after the action was com-
menced. Richardson v. Chassen, 34 Leg. Obs. 383. [In an action of tort
against a corporation for a personal injury by their locomotive engine, the
plaintiff’s occupation and means of earning support are not admissible in
evidence to increase the damages if not specially averred in the declaration.
Baldwin v. Western R. R. Corp. 4 Gray, 333. Whether such evidence
would be admissible in any form of declaration, guere. Ibid. In an action
by a father for the seduction of his daughter, damages to the plaintiff’s feel-
ings may be recovered, though not specially alleged in the declaration.
Phillips v. Hoyle, 4 Gray, 571.]
288 LAW OF EVIDENCE. [PART Iv.

the special damage is properly alleged, and is the natural
consequence of the wrongful act, the Jury may infer it from

 

damages for the loss he actually sustained by their leaving him at that criti-
cal period, of which the Jury were the proper and exclusive judges. Here
was a case of gross fraud and aggravated wrong, particularly dangerous in a
manufacturing community ; and yet no one pretended that the plaintiff had
a right to greater damages than he had himself sustained, however deserving
the defendants might be of a heavy pecuniary mulet, by way of example.
A subsequent case, parallel to this in its principles, is that of Williams v.
Currie, 1 M. G. & S. 841; in which, though acase of aggravated and annoy-
ing trespass, the Jury were restricted in their award of damages, to @ fair
compensation for the injury sustained. See also Sears v. Lyons, 2 Stark. R.
317, which was trespass for breaking the plaintiff’s close and poisoning his
fowls; where the Jury were cautioned to guard their feelings against the
impression likely to have been made by the defendant’s conduct.

The rule of damages as limited by the extent of the injury to the plaintiff,
was the same in the Roman Civil Law. See 1 Domat’s Civil Law, pp. 426,
427, book 3, tit. 5, sec. 2, u. 8, and notes; Wood’s Institute of the Civil Law,
book 3, ch. 7, p. 258-264, and the places there cited.

The broad doctrine stated by Mr. Sedgwick finds more countenance from
the bench of Pennsylvania, than in any other quarter; and yet even there,
it can hardly be said to have been adjudged to be the law, as may be seen
by the cases decided. The earliest, usually referred to, is Sommer v. Wilt,
48. & R. 19, which was an action on the case to recover damages for the
malicious abuse of legal process, in which the Jury found for the plaintiff,
assessing damages at $9500. The case came before the Court in bank, on
a motion to set aside the verdict, on the ground that the damages were ex-
cessive; but the motion was refused for the express reason, that “all the
facts and circumstances ” of the case “ were fairly submitted to the Jury, to
draw their own conclusion;” and that “there were circumstances from
which the Jury might have inferred malice, and evidence which satisfied
them that the ruin of the plaintiff was occasioned by an act of oppression,
and many aggravating circumstances of useless severity.” This case, there-
fore, is in strict accordance with the rule as we have stated it, the damages
being referred to the extent of the wrong done to the plaintiff. When,
therefore, the learned Judge, in the course of bis judgment, remarked, that
the standard of damages in actions of that nature “ was not even a watter of
mere compensation to the party, but an example to deter others,” the remark
was not called for by the question before him, but was entirely extrajudicial.
This case was cited and its principle approved, in Kuhn v. North, 10 8. &
R. 399, 411; in which the Court granted a new trial because of excessive
damages, in an action against the sheriff, where he honestly intended to
perform his duty, and the Jury were plainly mistaken.
PART Iv.] DAMAGES. 289

the principal fact. Thus, where the injury consisted in firing
guns so near the plaintiff’s decoy pond as to frighten away

 

(Of a similar character was the observation of Mr. Justice Grier, in the
late case of Stimpson’ v. The Rail Roads, 1 Wallace, 164, 170. It was an
action on the case for violation of the plaintiff’s patentatehey and the ques-
tion was whether the plaintiff’s actual costs out of pocket in prosecuting the
suit might be included by the Jury, in their estimation of damages. The
learned Judge, in delivering his opinion in the negative, incidentally said:
“Tt is a well-settled doctrine of the Common Law, though somewhat disputed
of late, (10 Law Reporter, 49,) that a Jury, in actions of trespass or tort,
may inflict exemplary or vindictive damages, upon a defendant, having in
view the enormity of the defendant’s conduct, rather than compensation to
the plaintiff.” This remark was clearly gratuitous, it being irrelevant to the
point in judgment.)

The strongest case in favor of giving damages to the plaintiff beyond
what he has sustained, is that of McBride v. McLaughlin, 5 Watts, 375,
which was trespass against a judgment-creditor, for a wilful and malicious
abuse of process, in the levy of his execution against two joint debtors, “ under
circumstances of peculiar injustice and oppression.” It appeared that the
oppression was in fact meditated not against the present plaintiff, but against
the other debtor, to whom the property taken was supposed to belong; and
that the present plaintiff had been joined in the judgment by mistake; and
it was set aside as to him. The question was, whether the defendant's
malice and misconduct in the transaction could be taken into the estimation
of damages, inasmuch as it was not intended against the plaintiff. The
Judge ruled that it might; and his ruling was sustained by the Court in
bank. There was no discovery of error or mistake by the creditor, and
consequent apology, during the oppressive transaction; but the whole was
carried out to its final consummation, in the most insolent and crue] manner.
The case, therefore, falls within our rule, that the Jury may consider all the
circumstances affecting the plaintiff, either in mind, body, or estate, and
award him damages to the extent of the injury done ¢o him in either of those
respects. Surely, if A spits in B’s face, on ’change, it does not diminish
the disgrace, nor, of course, the extent of the injury, for him afterwards to
say that he mistook B for C. The crowd that saw the indignity may never

come to the knowledge of this fact, nor does it lessen the pain inflicted upon
his feelings at the time. In both cases, as in all others, the evidence is
confined to the principal fact, with all its attending circumstances, stamping
its character, and affecting the party injured. In the case we have just cited,
however, the learned Judge does seem to place the decision of the Court on
the ground that, in certain offences against morals which would otherwise
pass without reprehension, ‘the providence of the Courts” permits the pri-
vate remedy to become an instrument of public correction. We say seems
to place it; for he also uses expressions which equally indicate a reliance

VOL. II. 25
290 LAW OF EVIDENCE. [PART Iv.

the wild fowls, or prevent them from coming there; or, in
maliciously firing cannon at the natives on the coast of

 

upon the rule which confines the Jury to the evidence affecting the plaintiff
alone. Such, for example, is the concluding senténce of his judgment :
“ The defendant was guilty of wilful oppression, and he is properly punished
for it.’ Oppression of whom? clearly the plaintiff, and no other. Our
limits will not permit an extended examination of all that fell from the Court
on this occasion ; but with the profound respect we sincerely entertain for
that learned bench, we may be allowed to question the accuracy of the asser-
tion, that, in an action for seduction of a daughter, the loss of service is the
only legal ground of damages to the plaintiff. It is true, it was stated by
Ld. Ellenborough, in 1809, to be difficult to perceive the legal propriety of
extending the rule beyond that ; yet he confessed the practice of so extending
it had become inveterate; and accordingly he instructed the Jury also to
consider the injury to the plaintiff’s parental feelings; and the rule has for
many years been well settled,-that in this, as in other wrongs, the wounded
feelings, the loss of comfort, and the dishonor of the plaintiff, resulting from
the act of the defendant, form a legal ground of damages, as part of the
transaction complained of. The grounds of the action for seduction were
recently examined in England, in Grinnel v. Wells, 7 M. & G. 1033, and the
damages explicitly admitted to be given as compensation ; not limited, how-
ever, to the actual expenditure of the plaintiff’s money, but given according
to all the circumstances of aggravation in the particular case. These are con-
sequences of the defendant’s wrongful act, done to the plaintiff, to his injury ;
and it is for these, and not for the outrage to the public, that damages are
given. See post, § 579, and cases there cited. Andrews v. Askey, 8 C. &
P. 7. The case of Benson v. Frederick, 3 Burr. 1845, cited in McBride v.
McLaughlin, was not a case of damages given for the sake of example. It
was an action against a colonel, for ordering a private to be whipped out of
spite to his major, who had given the man afurlough. The Jury gave him
£150; and the Court refused to set aside the verdict for excessiveness of
damages, because the man, “ though not much hurt, indeed, was scandalized
and disgraced by such a punishment.”

It is worthy of remark, that in Wynn v. Allard, 5 Watts & Serg. 524,
which was trespass for a collision of vehicles on the road, the same learned
Court of Pennsylvania very properly held, that the drunkenness of the
defendant was admissible in evidence, to determine the question of negli-
gence, where the proof was doubtful; but “not to inflame the damages.”
Why not, if it was “an offence against morals?” For it certainly must
have been deemed such an offence. And in Rose v. Story, 1 Barr, R. 190,
197, in trespass de bonis asportatis, where the Jury had been allowed, in
addition to the value of the property, to give such further damages as “ under
all the circumstances of the case, as argued by the counsel, they might think
the plaintiff entitled to demand ;” the same Court held the instruction wrong,
PART Iv.] DAMAGES. 291

Africa, whereby they were prevented from coming to trade
with the plaintiff; these consequences were held to be well
inferred from the wrongful act.

 

as giving the Jury “discretionary power without stint or limit, highly dan-
gerous to the rights of the defendant,” and “leaving them without any rule
whatever.”

The subject of vindictive damages has recently been before several other
American tribunals. In the Circuit Court of the United States, in Taylor
v. Carpenter, 10 Law Reporter, 85, 188; 2 Woodb. & Minot, 1, 21; which:
was case, for counterfeiting the plaintiff’s marks on goods of the defendant,
in which Sprague, J., had instructed the Jury to give exemplary damages,
for the sake of public example; the verdict was allowed to stand, as it
appeared that the Jury had not given more damages than, upon computation,
the plaintiff had actually sustained. But Woodbury, J., in giving judgment,
referred to the doctrine as stated in the text of this work, and in 3 Am. Jur.
287-308, without disapprobation ; and Sprague, J., with great candor de-
clared, that he had become satisfied that his ruling upon this point, at the
trial, was wrong. And it is worthy of note, that in a similar case, namely,
an action on the case for counterfeiting the plaintiff’s trade-marks, recently
determined in England, it was held, that the proper rule of damages was the
actual injury sustained by the plaintiff ; and it was observed by Coltman, J.,
that it would not have been at all unreasonable for the Jury to have found
damages to the amount of the profit made by the defendant upon the trans-
action in question. But there was no intimation that it was in any view of
the case lawful to go farther. Rodgers v. Nowill, 11 Jur. 1039. So, in a
later case, which was trespass against two, one of whom had acted from bad
motives, and the other had not, it was held that the damages ought not to be
assessed with reference to the act and motives of the most guilty or the most
innocent, but according to the whole injury which the plaintiff had sustained
from the joint trespass. Clark v. Newsam, 1 Exch. R.131. Inthe Supreme
Court of New York, in Whitney v. Hitchcock, (see 10 Law Rep. 189, since
reported in 4 Denio, 461,) which was case, by a father, for an atrocious
assault and battery upon his young daughter, the question directly in judg-
ment was, whether, in the case of a wrong punishable criminally, by indict-
ment, the plaintiff, in a civil action for the wrong, was entitled to recover
greater damages than he could prove himself to have sustained; and the
Court, having before it such of the foregoing discussions as were published
in the Law Rep. Vol. 9, p. 529-542, decided that he was not. The point was
also incidentally ruled in the same manner by Cushing, J., in Meads v. Cush-

1 Carrington v. Taylor, 11 Hast, 571; Keeble v. Hickeringill, Id. 574, ne;
11 Mod. 74,130; 3 Salk.9; Holt, 14,17, 19, S. C.;° Tarleton v. McGawley,
Peake’s Cas. 205.
292 LAW OF EVIDENCE. [PART IV.

§ 255. In trials at Common Law, the Jury are the proper
judges of damages; and where there is no certain measure
of damages, the Court, ordinarily, will not disturb their ver-
dict, unless on grounds of prejudice, passion, or corruption in

 

ing, in the Court of Common Pleas in Boston. See 10 Law Rep. 238. In
Austin v. Wilson, 4 Cush. 273, which was an action on the case for a libel,
the Judge in the Court below instructed the Jury that this was not a case in
which exemplary or punitive damages could be given; to which the plaintiff
took exception. The opinion of the Supreme Judicial Court on this point
was delivered by Metcalf, J., in the following terms: “ We are of opinion
that the Jury were rightly instructed that the damages, in this case, must be
limited to a compensation for the injury received. Whether exemplary,
vindictive, or punitive damages—that is, damages beyond a compensation
or satisfaction for the plaintiff's injuary—can ever be legally awarded, as an
example to deter others from committing a similar injury, or as a punisb-
ment of the defendant for his malignity, or wanton violation of social duty,
in committing the injury which is the subject of the suit, is a question upon
which we are not now required nor disposed to express an opinion. The
arguments and the authorities on both sides of the question are to be found
in 2 Greenl. on Ev., tit. Damages, and Sedgwick on Damages, 39 ef seg. If
such damages are ever recoverable, we are clearly of opinion that they can-
not be recovered in an action for an injury which is also punishable by in-
dictment ; as libel, and assault and battery. If they could be, the defend-
ant might be punished twice for the same act. We decide the present case
on this single ground. See Thorley v. Lord Kerry, 4 Taunt. 355; Whitney
v. Hitchcock, 4 Denio, 461; Taylor v- Carpenter, 2 Woodb. & Min. 122.”

The obscurity in which this subject has been involved, has arisen chiefly
from the want of accuracy and care in the use of terms, and from a reliance
on casual expressions and obiter dicia of Judges, as deliberate expositions
of the law, instead of looking enly to the point in judgment. In most of the
cases in which the terms “ vindictive damages,” “ exemplary damages,” and
“ smart-money” have been employed, they will be found to refer to the ci
cumstances which actually accompanied the wrongful act, and were part of
the res geste, and which, therefore, though not of themselves alone consti-
tuting a substantive ground of action, were proper subjects for the consider-
ation of the Jury, because injurious to the plaintiff. When the language
used by Judges in this connection is laid out of the case, as it ought to be,
the position, that criminal punishment may be inflicted in a civil action, by :
giving to the plaintiff a compensation for an injury he never received, and
which he does not ask for, will prove to have little countenance from any
judicial decision. The contrary is better supported, both by the principle
of many decisions, and by the analogies of the law. [See Chubb v. Gsell,
34 Penn. 114.
PART IV.| DAMAGES. 293

the Jury... If they are unable to agree, and the plaintiff has
evidently sustained some damages, the Court will permit him
to take a verdict for a nominal sum2 Generally, in actions
upon contract, where the plaintiff fails in proving the amount
due, or the precise quantity, he can recover only the lowest
sum indicated by the evidence. Thus, where delivery of a
bank-note was proved, but its denomination was not shown,
the Jury were rightly instructed to presume it to be of the
lowest denomination in circulation.® So, in assumpsit by a
liquor merchant, where the delivery of several hampers of
full bottles was proved, but their contents were not shown,
the Jury were directed to presume that they contained por-
ter, that being the cheapest liquor in which the plaintiff
dealt.*

§ 255. The damage to be recovered must always be the
natural and proximate consequence of the act complained of.
This rule is laid down in regard to special damage; but it
applies to all damage. Thus, where the defendant had
libelled a performer at a place of public entertainment, in
consequence of which she refused to sing, and the plaintiff
alleged that by reason thereof the receipts of his house were
diminished, this consequence was held too remote to furnish
ground for a claim of damages. So, where the defendant

 

1 Gilbert v. Birkinsham, Lofft, R. 771; Cowp. 230; Day v. Holloway, 1
Jur. 794; Kendall v. Stone, 2 Sandf. S$. C. R. 269; [or unless it evinces
partiality, or a mistake in principle. Treanor v, Donahoe, 9 Cush. 228.]

2 Feize v. Thompson, 1 Taunt. 121; [Bond v. Hilton, 2 Jones, Law, (N.
C.) 149; Owen v. O’Riclly, 20 Miss. (5 Bennett,) 603.]

3 Lawton v. Sweeney, 8 Jur. 964.

4 Cluones v. Pezzy, 1 Campb. 8.

5 See Sedgwick on Damages, ch. iii. ; [Post, § 261; Marble v. Worcester,
4 Gray, 395; Miller v. Butler, 6 Cush. 71; Watson v. The Ambergate Rail-
way Co. 3 Eng. Law and Eq. 497.]

6 Ashley v. Harrison, 1 Esp. R. 48; 2 Stark. on Slander, pp. 64, 65. And
see Armstrong r. Percy, 5 Wend. 538, 539, per Marcy, J.; Crain v. Petrie,
6 Hill, (N. Y.) R. 522; Downer v. Madison Co. Bank, Id. 648. [“ The rule
has not been uniform or very clearly settled as to the right of a party to
claim a loss of profits as a part of the damages for breach of a special con-

25 *
294 LAW OF EVIDENCE. [PART Iv.

asserted. that the plaintiff had cut his master’s cordage, and
the plaintiff alleged that his master, believing the assertion,
had thereupon dismissed him from his service; it was held,
that the discharge was not a ground of action, since it was
not the natural consequence of the words spoken! So also,
it has been held that, in asswmpsit for breach of.a promise to
marry, evidence of seduction is not-admissible, in aggrava-
tion of damages.2. And in trespass gudre clausum fregit, for
destroying the plaintiff’s fences, it was held that the meas-
ure of damages was the cost of repairing the fences, and not
the injury resulting to the subsequent year’s crop from the
defect in the fences, long after the plaintiff had knowledge
of the fact.?

 

tract. But we think there is a distinction by which all questions of this sort
can be easily tested. Ifthe profits are such as would have accrued and
grown out of the contract itself, as the direct and immediate results of its
fulfilment, then they would form a just and proper item of damages to be
. recovered against the delinquent party upon a breach of the agreement.
These are part and parcel of the contract itself, and must have been in the
contemplation of the parties when the agreement was entered into. But if
they are such as would have been realized by the party from other indepen-
dent and collateral undertakings, although entered into in consequence and
on the faith of the principal contract, then they are too uncertain and remote
to be taken into consideration as a part of the damages occasioned by the
breach of the contract.” By Bigelow, J.,in Fox v. Harding, 7 Cush. 522;
Masterton v. Brooklyn, 7 Hill, 61; Chapin v. Norton, 6 McLean, 500.]

1 Vickars v. Wilcocks, 8 East, 1. This case, however, is said to have been
doubted. 8 Jur. 876, per Parke, B. See also 1 Smith’s Leading Cases, p
203-304, and cases there cited; 1 Stark. on Slander, p. 205.

2 Weaver v. Bachert, 2 Barr, R. 230. Aud see Hay v. Graham, 8 W. &
8. 27. [Loss of time and expenses incurred in preparations for marriage
are grounds of damage directly incidental to a breach of promise of mar-
riage ; but they are strictly incidental, and are not grounds of special dam-
age. Smith v. Sherman, 4 Cush. 414.]

3 Loker v. Damon, 17 Pick. 284. [A person who puts a libel in circula-
tion is liable to all the natural and probable consequences of so putting it in
circulation. Miller v. Butler, 6 Cush. 71. Where a horse drawing a vehi-
cle, and driven with due care, becomes frightened and excited by the strik-
ing of the vehicle against a defect in the highway, frees himself from the
control of his driver, turns, and at the distance of fifty rods from the defect,
knocks down a person on foot in the highway, and using reasonable care,
PART Iy.] DAMAGES. 295

§ 257. In cases of contract, if the parties themselves have
liquidated the damages, the Jury are bound to find the amount
thus agreed. But whether the sum, stipulated to be paid
upon breach of the agreement, is to be taken as liquidated
damages, or only as a penalty, will depend upon the intent
of the parties, to be ascertained by a just interpretation ef
the contract. And here it is to be observed, that the policy
of the law does not regard penalties or forfeitures with favor ;
and that Equity relieves against them. And therefore, be-
cause, by treating the sum as a mere penalty, the case is
open to relief in Equity, according to the actual damages,
the sum will generally be so considered; and the burden of
proof will be on him who claims it as liquidated damages,
to show that it was intended as such by-the parties! This
intent is to be ascertained from the whole tenor and subject
of that agreement; the mere use of the words “ penalty,”
“ forfeiture,” or “liquidated damages,” not being regarded as

 

the city or town obliged by law to keep the highway in repair is not respon-
sible for the injury so occasioned, though no other cause intervene between
the defect and the injury. Marble v. Worcester, 4 Gray, 395. <A prize
was offered for the best plan and model of a certain machine, the plans and
models intended for the competition to be sent by a certain day. The
plaintiff sent a plan and model by a railway company, which by negligence
did not deliver the plan, &c., until after the appointed day. In such a case,
the proper measure of damages would seem to be the value of the labor and
materials in making the plan and model, and not the chance of obtaining
the prize, this being too remote a ground for damages. Watson v. The Am-
bergate, &c. Railway Co. 8 Eng. Law and Eq. 497.]

1 Tayloe v. Sandiford, 7 Wheat. 17, per Marshall,.C. J. Mr. Evans
seems 1o have been of the contrary opinion. 2 Poth. Obl. 71, 82, 86, by
Evans. Wherever there is an agreement to do a certain thing, under a
penalty, the obligee may either sue in debt for the penalty, in which case he
cannot recover more than the penalty and interest, but may, upon a hearing
in Equity, recover less; or, he may sue in covenant, upon the agreement,
for the breach thereof, disregarding the penalty; in which case he may gen-
erally recover more, if he has suffered more. Harrison v. Wright, 13 East,
342; Bird v. Randall, 1 Doug. 373 ; Winter v. Trimmer, 1 Bl. Rep. 395;
Astley v. Weldon, 2B. & P. 346. If the sum is claimed as liquidated damages, ,
it must be sued for in debt, or indebitatus assumpsit. Davies v. Penton, 6!
B. & C. 221; Bank of Columbia v. Patterson, 7 Cranch, 303.

—
296 LAW OF EVIDENCE. [PART IV.

at all decisive of the question, if the instrument discloses,
upon the whole, a different intent.

§ 258. The cases, in which the sum has been treated as a
penalty, will be found to arrange themselves into five classes,
furnishing certain rules by whieh the intention of the parties
is aereriened. (1.) Where the parties, in the agreement,
have expressly declared the sum to be intended asa forfeit-
ure, or penalty, and no other intent is to be collected from
the instrument. (2.) Where it was doubtful whether it was
intended as a penalty, or not; and a certain damage, or debt,
less than the penalty, is made payable, on the face of the
instrument? (3.) Where the agreernent was evidently made
for the attainment of another object, to which the sum speci-
fied is wholly collateral. This rule has been applied, where
the principal agreement was, not to trade on a certain coast ; +
to let the plaintiff have the use of a certain building ;° or,
of certain rooms; ® and not to sell brandy, within certain lim-
its ;7 but the difference between these and some other cases,
which have been regarded as liquidated damages, is not very
clear. (4.) Where the agreement contains several matters,
of different degrees of importance, and yet the sum named
is payable for the breach of any, even the least. Thus,
where the agreement was, to play at Covent Garden, and
to conform to all the rules of the establishment, and to pay
one thousand pounds for any breach of them, as liquidated
damages, aud not as a penalty, it was still held as a penalty

 

1 Davies v. Penton, 6 B. & C. 224, per Littledale, J.; Kimble v. Ferren,
6 Bing. 141; 2 Story on Eq. § 1318.

2 Astley v. Weldon, 2 B. & P. 346, 350; Smith v. Dickinson, Id. 630;
Tayloe v. Sandiford, 7 Wheat. 14; Wilbeam v. Ashton, 1 Campb. 78; Orr

v. Churchill, 1 IL. Bl. 227; Biecan v. Barrett, 1 Pick. 451; Denn v. Cum-
ming, 3 Johns. Cas. 297; Bean v. Bellows, 4 Pick. 179.

3 Astley ¢ Weldon, 2 B. & P. 350, per Ld. Eldon. And see the obser-
vations of Best, C. J., in Crisdee v. Bolten, 3 C. & P. 240.

4 Perkins +. Lyman, 11 Mass. 76.

5 Merrill v Merrill, 15 Mass. 488.

6 Sloman v. Walter, 1 Bro. Ch. C. 418.

7 Hardy v. Martin, 1 Bro. Ch. 419.
PART Iv.] DAMAGES. 297

only. (5.) Where the contract is not under seal, and the
damages are capable of being certainly known and estimated ;
and this, though the parties have expressly declared the sum
to be as liquidated damages.”

§ 259. On the other hand, it will be inferred that the par-
ties intended the sum as liquidated damages, (1.) Where the
damages are uncertain, and are not capable of being ascer-
tained by any satisfactory and known rule; whether the
uncertainty lies in the nature of the subject itself, or in the
particular circumstances of the case. This rule has been
applied, where the agreement was to pay a certain sum for
each week’s neglect to repair a building ;? for each year’s
neglect to remove a lime-kiln ;* for not marrying the plain-
tiff;® for running a stage on a certain road, in violation-of
contract ;° for breach of a contract not to trade, or practise,
within certain limits ;7 and for not resigning an office, agree-
ably to a previous stipulation.® (2). Where, from the nature
of the case, and the tenor of the agreement, it is apparent,

 

1 Kemble v. Farren, 6 Bing. 141; Boys v. Anceil, 5 Bing. (N. C.) 390;
7 Scott, 364; Carrington v. Laing, 6 Bing. 242. There are, however, some
cases in which it has been said that, where the parties expressly declare,
that the sum is to be taken as liquidated damages, it shall be so taken. See
Hasbrouck v. Tappen, 15 Johns. 200; Slosson v. Beale, 7 Johns. 72; Reilly
v. Jones, 1 Bing. 302; Goldsworthy v. Strutt, 35 Leg. Obs. 540. But this
rule, it is conceived, ought to be applied only where the meaning is not other-
wise discoverable; since it runs counter to the general policy of the law of
Equity, and to the statutes which provide for relief against forfeitures and
penalties in the Courts of Common Law.

2 Pinkerton v. Caslon, 2 B. & Ald. 704; Davies v. Penton, 6 B. & C. 216;
Randall v. Everest, 1 M. & Malk.41; Barton v. Glover, 1 Holt, Cas. 43 ;°
Spencer v. Tilden, 5 Cow. 144; Graham v. Bickham, 4 Dall. 150.

3 Fletcher v. Dyche, 2 T. R. 32.

4 Huband ». Grattan, 1 Alcock & Napier, R. 389.

5 Lowe ec. Peers, 3 Burr. 21253 Cock v. Richards, 10 Ves. 429.

6 Leighton v. Wales, 3 M. & W. 545; Pierce v. Fuller, 8 Mass. 223.

7 Noble v. Bates, 7 Cow. 309; Smith v. Smith, 4 Wend. 468; Crisdee v.
Bolton, 3 C. & P. 240. In this case, the sum was declared by the parties to
be liquidated damages. Goldsworthy v. Strutt, 35 Leg. Obs. 540.

8 Legh v. Lewis, cited 2 Poth. Obl. 85, by Evans.
298 LAW OF EVIDENCE. [PART Iv.

that the damages have already been the subject of actual and
fair calculation ‘and adjustment between the parties. Of
this sort are agreements to pay an additional rent for every
acre of land which the lessee should plough up ;? not to per-
mit a stone weir to be enlarged, “ under the penalty of double
the yearly rent, to be recovered by distress or otherwise ;” ®
to convey land, or, instead thereof, to pay a certain sum ;*
to pay a higher rent, if the lessee should cease to reside on
the premises ;° that a security should become void, if put in
suit before the time limited in a letter of license granted to
the debtor ;® and, to pay a sum of money, in goods, at an
agreed price.’

§ 260. In the proof of damages, the plaintiff is not con-
Jined to the precise number, sum, or value, laid in the dec-
laration ; nor is he bound to prove the breach of a contract
to the full extent alleged. Thus, though he cannot recover
greater damages than he has laid in the ad damnum at the
conclusion of his declaration, yet the Jury may find damages
for the value of goods tortiously taken, beyond the value
alleged in the body of the count. So, under a count for a
total loss of property insured, it is sufficient to prove an

 

1 See observations of Best, C. J.,in Crisdee v. Bolton, 3 C. & P. 240;
2 Story on Eq. Jurisp. § 1318; Leland v. Stone, 10 Mass. 459, 462.

2 Rolfe v. Peterson, 6 Bro. P. C. 486; Birch v. Stephenson, 3 Taunt. 473 ;
Farrant v. Olmius, 3 B. & Ald. 692; Jones v. Green, 3 Y. & J. 298; Aylet
v. Dodd, 2 Atk. 238; Woodward v. Giles, 2 Vern. 119. ;

3 Gerrard v. O'Reilly, 2 Connor & Lawson, 165.

4 Slosson v. Beale, 7 Johns. 72. And see Hasbrouck v. Tappen, 15
Johns. 200; Reilly v. Jones, 1 Bing. 302; Knapp v. Maltby, 13 Wend.
507; Tingley v. Cutler, 7 Conn. 291; Mead v. Wheeler, 13 N. Hamp.
R. 351.

5 Ponsonby v. Adams, 6 Bro. P. C. 418.

6 White v. Dingley, 4 Mass. 433. And see Wafer v. Mocato, 9 Mod. 113.

7 Brooks v. Hubbard, 3 Conn. 58. If the agreed price is unconscionable,
the Court will not adopt it as the rule of damiges. Cutler v. How, 8 Mass.
237; Cutler v. Johnson, Id. 266; Baxter v. Wales, 12 Mass. 365.

8 Hutchins v. Adams, 3 Greenl. 174; Pratt v. Thomas, 1 Ware, R. 147;
The Jonge Bastiaan, 5 Rob. 322.
PART Iv.] DAMAGES. 299

average or partial loss! And in covenant, or assumpsit, proof
of part of the breach alleged, is sufficient to entitle the
plaintiff to recover.”

§ 261. The measure of damages will, ordinarily, be ascer-
tained by reference to the rule already stated, namely, the
natural and proximate consequences of the act complained
of. Thus the drawers, and indorsers of bills of exchange,
upon. the dishonor thereof, are ordinarily liable to the holder
for the principal sam and the common mercantile damages,
such as interest, expenses, reéxchange, é&c., consequent upon
the dishonor of the bill. For, having engaged that the bill
shall be paid at the proper time and place, the holder is enti-
tled to expect the money there; and if it is not paid accord-
ingly, he is entitled to re-draw on them for such a sum, as,
at the market rate of exchange at the place, would put him
in funds to the amount of the dishonored bill, and interest,
with the necessary incidental expenses.? Upon a contract to
deliver goods, the general rule of damages for non-delivery is
the market value of the goods at the time and place of the
promised delivery, if no money has yet been paid by the ven-
dee ;* butif the vendee has already paid the price in advance,
he may recover the highest price of such goods in the same
place, at any time between the stipulated day of delivery,
and the time of trial. If, in the latter case, the market price

 

1 Gardiner v. Croasdale, 2 Burr. 904; 1 W. BI. 198, 8. C.; Nicholson v.
Croft, 2 Burr. 1188, per Ld. Mansfield.

2 1 Chitty on Pl. 297; Sayer, Law of Dam. p. 45; Van Ransselaer v:
Platner, 2 Johns. 18.

3 Story on Bills, §§ 399, 400; 3 Kent, Comm. 115, 116.

4 Gainsford v. Carroll, 2 B. & C. 624; Boorman v. Nash, 9 B. & C. 145;
Shaw v. Nudd, 8 Pick. 9; Swift v. Barnes, 16 Pick. 194,196; Shepherd ».
Hampton, 3 Wheat. 200,204; Douglas v. McAllister, 3 Cranch, 298;
Chitty on Contra. 352, n. (2), by Perkins; Dey v. Dox, 9 Wend. 129;
[Bank of Montgomery v. Reese, 26 Penn. State R. (2 Casey,) 143.]

5 Clark v. Pinney, 7 Cow. 681; Chitty on Contr. 352, n. (2), by Perkins.
But in Massachusetts, the damages are restricted to the value at the agreed
time of delivery. Kennedy v. Whitwell, 4 Pick. 466; Sargent v. Franklin
Ins. Co. 8 Pick. 90. In an action for breach of contract for the sale of
300 LAW OF EVIDENCE. [PART Iv.

is lower at the stipulated time of delivery, than at the date
of the contract, the measure of damages is the money ad-
vanced, with interest... So, upon a contract to replace stock,
the. measure of damages is the price or value on the day
‘when it ought to have been replaced, or, at the time of trial,
at the option of the plaintiff. But if afterwards, and while
the stock was rising, the defendant offered to replace it, the
plaintiff cannot recover more than the price on the day of
tender. In an action for a breach of warranty upon the sale

 

goods, it has been held that the measure of damages is not merely the
amount of difference between the contract price and the price at which the
goods could have been bought at the moment when the contract was broken,
but likewise a compensation for such profit as might have been made by the
purchaser, had the contract been duly performed. Dunlop »v. Higeins,
12 Jur..295; 1H. L. Ca. 381. [The measure of damages in the case of a
breach of a contract to deliver goods at a specified time, is the difference
between the contract price and the market price at the time of the breach
of the contract, or the price for which the vendee had sold; but the pur-
chaser cannot recover as special damage, the loss of anticipated profits to
be made by his vendees. Peterson v. Ayre, 24 Eng. Law & Eq. 382; see
Waters v. Towers, 20 Ib. 410. In an action for the price of goods, it is not
competent for the plaintiff to show their value for a specific purpose, but
‘only their market value at the time and place of delivery. Bouton v. Reed,
‘18 Gray, 530.] But where the contract was for the sale of real estate, which
the vendor was unable to perform, for want of a good title in himself, a
distinction has been taken between the cases of good and bad faith in the
vendor; it being held, that where no fraud appears on his part, but all has
been bond fide, the plaintiff can recover only the money paid and interest,
or, his actual damages out of pocket; but that if the vendor is chargeable
with mala fides, the plaintiff may recover for the loss of his bargain ;
namely, the actual value of the land, at the time when it ought to have been
conveyed. Flureau v. Thornhill, 2 W. Bl. 1078; Bitner v. Brough, 1 Jones,
127. Ideo quere. [Barbour v. Nichols, 8 Rhode Isl. 87. A carrier who at
first wrongfully refuses to deliver, but afterwards delivers goods consigned to
a manufacturer, is not liable for consequential damages arising from delay to
the consignee’s works caused by such refusal, or for a loss of profits from
the same cause; but he is liable for the expense of sending to the carrier’s
oflice a second time for the goods. Waite v. Gilbert, 10 Cush. 177.]

1 Clark'v. Pinney, 7 Cow. 681; Chitty on Contr. 352, n. (2), by Perkins;
Bush v. Canfield, 2 Conn. 485; [Barnard v. Conger, 6 McLean, 497; Hal-
seys v. Hurd, Ib. 102; Dana v. Fiedler, 2 Kernan, (N. Y.) 40; Clark ».
Dales, 20 Barb. 42.]

® Shepard v. Johnson, 2 East, 211; McArthur v. Ld. Seaforth, 2 Taunt.
PART Iv.] DAMAGES. B01

of goods, the measure of damages is the difference of yalue
between the article in a sound and in an unsound state, with-
out regard to the price given And generally, in other cases
of special contract, where one party agrees to do a certain
thing, or to perform specific services, for a stipulated sum of
money, as, for example, to perform a piece of mechanical
work, for an agreed price, or to occupy a tenement for a
certain time at a specified rent, and deserts the undertaking
before it is completed, or is turned away and forbidden to
proceed by the other party; the measure of damages is not
the entire contract-price, but a just recompense for the actual
injury which the party has sustained.2 And in all cases of |
breach of such specific contracts, it is'to be observed, that,
if the party injured can protect himself from damages at a
trifling expense, or by any reasonable exertions, he is bound
so to do. He can charge the delinquent party only for such °
damages, as, by reasonable endeavors and expense, he could
not prevent. ;

 

257; Harrison v. Harrison, 1 C. & P. 412. But in Massachusetts, the rule
is confined to the price at the agreed day of transfer, and is not extended to
any subsequent period. Gray v. Portland Bank, 3 Mass. 390. [Where a
corporation refuses to give to an owner of shares therein, certificates of
such shares on demand, or to recognize him as the owner thereof, and sells
the shares to a third person, it is liable to pay the owner the value of the
shares at the time of his demand, and interest thereon from the time of the
demand. Wyman v. American Powder Co. 8 Cush. 168.]

1 Cotters v. Keever, 4 Barr, 168; [Post, § 262; Moulton v. Scruton,
39 Maine, (4 Heath,) 287; Forman v. Miller, 5 Mclean, 218.]

2 Clark v. Marsiglia, 1 Denio, R. 317; Wilson v. Martin, Id. 602; Spen-
cer v. Halsted, Id. 606. [Where there is a special contract to do a piece of
work, as to build a dam, and the person agreeing to do the work builds a
dam, in good faith and with an honest intention of fulfilling the contract,
though not according to the contract, the damages are found by deducting
from the contract-price so much as the dam built is worth less than the dam.
contracted for. Gleason v. Smith, 9 Cush. 486. Where there isa deficiency
in the work, the measure of damages is the amount required to be paid to
complete the work according to the contract. Ibid. Snow v. Ware, 13
Met. 42; Wade v. Haycock, 25 Penn. State R. (1 Casey,) 382.]

3 Miller v. The Mariner’s Church, 7 Greenl. 57. So, in trespass. Loker
v. Damon, 17 Pick. 284. See contra Heaney v. Heeney, 2 Denio, R.
625.

VOL. Il. 26
802 LAW OF EVIDENCE. [PART IV.

- § 261 a. A distinction, however, has been taken between
contracts for specific work by the piece, and the like, and
contracts for the hire of clerks, agents, laborers, and domestic
servants for a year or shorter determinate period; and it is
held in the latter class of cases, that if the person so employed
is improperly dismissed before the term of service is expired,
he is entitled to recover for the whole term; unless the de-
fendant, on whom the burden of proof lies, can show, either
that the plaintiff was actually engaged in other profitable
service during the term, or that such employment was offered
to him and rejected! The same principle has also been

 

1 Costigan v. M. & H. Railroad Co. 2 Denio, R. 609. In this case, which
was for a full year’s salary, where the plaintiff had been improperly dismissed
after two months’ service, the law was thus stated by Beardsley, J.: “As a
general principle, nothing is better settled than that upon these facts the
plaintiff is entitled to recover full pay for the entire year. He was ready
during the whole time to perform his agreement, and was in no respect in
fault. The contract was in full force in favor of the plaintiff, although it had
been broken by the defendants. In general, in such cases, the plaintiff has
a right to full pay. The rule has been applied to contracts for the hire of

: clerks, agents, and laborers, for a year or a shorter time, as also to the hire
of domestic servants, where the contract may usually be determined by a
month’s notice, or on payment of a month’s wages. The authorities are full
and decisive upon this subject. (Chitty on Contr. 5th Am. edit. 575-581 ;
1 Chit. Gen. Pr. 72-83; Browne on Actions at Law, 181-185, 504, 505;
Beeston v. Collyer, 4 Bing. 309; Fawcett v. Cash, 5 Barn. & Ad. 904; Wil-
liams v. Byrne, 7 Ad. & El. 177; French v. Brookes, 6 Bing. 354; Gandell
v. Pontigny, 4 Campb. 375; Robinson v. Hindman, 3 Esp. 235; Smith v.
Kingsford, 3 Scott, 279; Smith v. Hayward, 7 Ad. & El. 544.) The rule
of damages against the employer for the breach of a contract to perform
mechanical work by the piece is different. (See Clark v. Marsiglia, 1 Denio,
317.) In no case which I have been able to find, and we were referred to
none of that character, has it ever been held or even urged by counsel, that
the amount agreed to be paid should be reduced, upon the supposition that
the person dismissed might have found other employment for the whole or
some part of the unexpired term during which he had engaged to serve the
defendant. And yet this objection might be taken in every such case, and
in most of them the presumption would be much more forcible than in the
case at bar. The entire novelty of such a defence affords a very strong
if not a decisive argument against its solidity. (The Duke of Newcastle
v. Clarke, 8 Taunt. 602.) Nor do I find any case in which it was proved
that other employment was cffered to the plaintiff after his dismissal, and
that his recovery was defeated or diminished because he refused to accept of
such proffered employment.
PART IV.] DAMAGES. 303

applied in suits for the recovery of dead freight, where the
quantity agreed to be put on board by the shipper has not
been furnished.?

‘

“Tt has, however, been held, and rightly so, as J think, that where a sea-
man, hired for the outward and return voyage, was improperly dismissed by
the captain before the service was completed, a recovery of wages by the
seaman, for the whole time, was proper, deducting what he had otherwise
received for his services after his dismissal and during the time for which his
employer was bound to make payment. (Abbott on Shipp. 4th Am. ed. 442,
443; Hoyt v. Wildfire, 3 Johns. 518; Ward v. Ames, 9 Id. 138; Emerson v.
Howland, 1 Mason, 22, 51.)

“ And upon the same principle, where a merchant engages to furnish a
given quantity of freight for a ship, for a particular voyage, and fails to do so,
he must pay dead freight, to the amount so agreed by him, deducting what-
ever may have been received from other persons, for freight taken in lieu
of that, which the merchant had stipulated to furnish. (Abbott, 277, 278,
Puller v. Staniforth, 11 East, 232;-Puller v. Halliday, 12 Id. 494; Kleine v.
Catara, 2 Gall. 66, 73.) Upon this principle, as I understand, the case of
Shannon v. Comstock, 21 Wend. 457, was decided. The defendants there
engaged to pay the plaintiffs fifty-five dollars for the transportation of a cer-
tain number of horses, on the canal, from Whitehall to Albany, but failed to
comply with their agreement. An action was thereupon brought to recover
the fifty-five dalfars, and the contract and its violation having been shown,
‘the defendants offered to prove that the damages sustained by the plaintiffs
did not exceed five dollars.’ What facts were offered to be given in evidence
in order to establish this result, cannot be collected with absolute certainty,
from the report of the case, but it does not appear that any objection was
made to the form of the offer, and the report shows that the evidence was ob-
jected to and excluded. I infer, then, that the offer of the defendants was to
show, by competent evidence, that the plaintiffs took other freight on board
their boat instead of their horges, so that their loss, by the violation of this
contract, was buf small. Upon the ground already stated, that loss was the

1 Abbott on Shipp. by Shee, p. 242-245; Sedgwick on Damages, p. 377;
Heckscher v. McCrea, 24 Wend. 804; Shannon v. Comstock, 21 Wend. 457.
[Where goods are wrongfully taken from a vessel by the shipper before she
has broken ground on the voyage, the ship-owner is not entitled to the stipu-
lated freight, as such, but to an indemnity for the breach of the contract.
And if the vessel is a general ship, and the goods removed form only part of
her cargo, and the ship-owner is bound by contracts with other shippers to
perform the proposed voyage, and does perform it, the measure of damages
is the stipulated freight, less the substituted freight actually made, or which
might have been made by reasonable diligence. Bailey v. Damon, 3 Gray,
92.]
304 LAW OF EVIDENCE. [PART Iv.

§ 262. In assumpsit upon the warranty of goods, the meas-
ure of damages is the difference between the value of the

 

amount the plaintiffs were in law and justice entitled to recover. So this
Court held, and as the evidence had been rejected in the Court below, the
judgment was reversed. The views of the Chancellor, as stated in the case
of Taylor v. Read, 4 Paige, 571, are to the same effect, and the propriety of
the rule seems to me too apparent to admit of doubt.

“In these cases it appeared, or was offered to be shown, that the plaintiffs
had in fact performed services for others, and for which they had been paid,
in leu of those they had bound themselves to perform for their defendants,
and which the latter had refused to receive. In Heckscher v. McCrea, 24
Wend. 304, the Court went a step further. That case arose in the Superior
Court of the city of New York, where McCrea was plaintiff. It was an action
for dead freight which the plaintiff claimed under a special contract with the
defendants. They had agreed with the plaintiff to furnish a given number of
tons of freight, at a certain price, for a return cargo from China to New York,
in the plaintiff’s ship. A part of the freight was furnished by the defendants,
as agreed, but they fell short about one hundred and thirty tons. * The agents
for the defendants at Canton, where the ship then was, having no more
freight to put on board for the defendants, offered to supply the deficiency,
from the goods of other persons in their hands, which the agents were au-
thorized to ship to the United States; such shipment to be made at a reduced,
although the then current rate, but with an express agreement that receiving
this freight on such reduced terms should not interfere with the original
agreement between the parties to this suit. This offer was declined, and to
the extent of this deficiency the ship came home empty. The action was to
recover for this deficient freight. The Court held that the plaintiff should
have taken the freight offered, although at a rate below what the defendants
had agreed to pay; that so far it would have relieved the defendants without
doing injury to the plaintiff, and by which about two thirds of the amount
now claimed might have been saved.

“Tn all the cases I have cited, the facts on which the delinquent party
sought to bring the amount to be recovered, below the sum agreed to be
paid, were proved or offered to be proved on the trial. Nothing was left to
inference or presumption, and it was virtually conceded that the onus of the
defence rested on the defendant. ‘They are also cases in which the plaintiffs
had either earned and received money from others, during the time when
they must have been employed in fulfilling their contract with the defendants,
or in which they might have earned it in a business of the same character
and description with that which they had engaged with the defendants to
perform.

“ The principles established by the cases referred to, seem to me just, and
although I have found no case in which they have been applied to such an
engagement as that between these parties, still I should have no hesitation -
PART IV.] DAMAGES. 805

goods at the time of sale, if the warranty were true, and
the actual value in point of fact. If goods are warranted
as fit for the particular purpose which they are asked for, the
purchaser is entitled to recover what they would have been
worth to him, had they been so If they have been received
back by the vendor, the plaintiff may recover the whole
price he paid for them; otherwise, he may resell them, and

 

where the facts would allow it to be done, to apply them to such a case as
this.

“ But first of all, the defence set up should be proved by the one who sets it
up. He seeks to be benefited by a particular matter of fact, and he should
therefore prove the matter alleged by him. The rule requires him to prove
an affirmative fact, whereas the opposite rule would call upon the plaintiff to
prove a negative, and therefore the proof should come from the defendant.
He is the wrongdoer, and presumptions between him and the person wronged
should be made in favor of the latter. For this reason, therefore, the onus
must in all such cases, be upon the defendant.

“Had it been shown, in the case at bar, that the plaintiff, after his dis-
missal, had engaged in other business, that might very well have reduced the
amount which the defendants ought otherwise to pay. For this, the cases
T have referred to would furnish sufficient authority. But here, it appears
that the plaintiff was not occupied during any part of the time from the
period of dismissal to the close of the year.

“ Again, had it been shown on the trial, that employment of the same
general nature and description with that which the contract between these
parties contemplated, had been offered to the plaintiff, and had been refused
by him, that might have furnished a ground for reducing the recovery below
the stipulated amount. It should have been business of the same character
and description, and to be carried on in the same region. The defendants
had agreed to employ the plaintiff in superintending a railroad from Albany
to Schenectady, and they cannot insist, that he should, in order to relieve
their pockets, take up the business of a farmer or a merchant. Nor could
they require him to leave his home and place of residence, to engage in
business of the same character with that in which he had been employed by
the defendants.”

1 Caswell v. Coare, 1 Taunt. 566; Fielder v. Starkin, 1 H. BI. 17; Curtis
v. Hannay, 3 Esp. 83; Buchanan v. Parnshaw, 2 T. R. 745; Egleston v.
Macauly, 1 McCord, 379; Armstrong v. Percy, 5 Wend. 539; [Tuttle ».
Brown, 4 Gray, 460; Reggio v. Braggiotti, 7 Cush. 166 ; Goodwin v. Morse,
9 Met. 278; Cothers v. Keever, 4 Barr, 168. The measure of damages is
the same in an action for a deceit in the sale. Stiles v. White, 11 Met. 356;
Tuttle v. Brown, 4 Gray, 460; Clare v. Maynard, 7 Car. & P. 743.]

2 Bridge v. Wain, 1 Stark. R. 504.

26*
306 LAW OF EVIDENCE. [PART Iv.

recover the difference between the price he paid and the price
received! And if, not having discovered the unsoundness
or defects of the goods, he sells them with similar warranty,
and is sued thereon, he may recover the costs of that suit, as
part of the damages he has sustained by breach of the war-
ranty made to himself, if he gave seasonable notice of the
suit, to the original vendor?

§ 263. In debt on bond, interest, beyond the penalty, may
be recovered as damages.’ If the damages actually sustained
are greater than the penalty and interest, the only remedy is
by an action of covenant, which may be maintained where
the condition discloses an agreement to perform any specific
act; in which case, if it be other than the payment of money,
the Jury may, ordinarily, award the damages actually sus-
tained, without regard to the amount of the penalty.

§ 264. In an action of covenant upon any of the covenants
of title, in a deed of conveyance, except the covenant of
warranty, the ordinary measure of damages is the consider-
ation-money, or the proper proportion of it, with interest.
But for breach of the covenant of warranty, though, in some
of the United States, the same rule prevails as in covenants
of title; yet, in others, the course is to award damages to the
value of the land at the time of eviction. In the former
States, the Courts regard the modern covenant of warranty
as a substitute for the old real covenant, upon which, in a
writ of warrdntia chart, or upon voucher, the value of the

 

l Caswell v. Coare, 1 Taunt. 566; Buchanan v. Parnshaw, 3 T. R. 745;
Woodward v. Thacher, 3 Am. Law Jour. 228, N. S. :

2 Lewis v. Peake, 7 Taunt. 153; Armstrong v. Percy, 5 Wend. 585.
[He may recover his taxable costs, Coolidge v. Brigham, 5 Met. 72; but not
counsel fees, Reggio v. Braggiotti, 7 Cush. 166.]

‘8 Lonsdale v. Church, 2 T. R. 888; Wilde v. Clarkson, 6 T. R. 8303; Mc-
Clure v. Dunkin, 1 East, 436; Francis v. Wilson, Ry. & M. 105; Harris v.
Clap, 1 Mass. 308; Pitts v. Tilden, 2 Mass. 118; Warner v. Thurlo, 15
Mass. 154.

4 4 Kent Comm. 474, 475; Dimmick v. Lockwood, 10 Wend. 142,
PART IV.] DAMAGES. 307

other lands to be recovered was computed as it existed at the
time when the warranty was made; and accordingly they
retain the same measure of compensation for the breach of
the modern covenant. But in the latter States, the Courts
view the covenant as in the nature of a personal covenant of
indemnification, in which, as in all other cases, the party is
entitled to the full value of that which he has lost, to be
computed as it existed at the time of the breach

§ 265. In general, as we have already seen, damages are
estimated by the actual injury which the party has received.
But to this rule there are some exceptions. For, if the plain-
tiff has concurrent remedies, such as trespass and trover,
he may elect one, which, by legal rules, does not admit of
the assessment of damages to the extent of the injury.
Thus, if he elects to sue in trover, he can ordinarily recover
no more than the value of the property, with interest;
whereas, if he should bring trespass,-he may recover not
only the value of the goods, but the additional damages

 

1 The consideration-money and interest is adopted as the measure of dam- |
ages in New York; Statts v. Ten Eyck, 3 Caines, R. 111; Pitcher v. Liv-
ingston, 4 Johns. 1; Bennett v. Jenkins, 13 Johns. 50;—and in Pennsylva-
nia; Bender v. Fromberger, 4 Dall. 441;—and in Virginia; Stout v. Jack-
son, 2 Rand. 132;— and in North Carolina; Cox v. Strode, 2 Bibb, 272;
Phillips v. Smith, 1 N. Car. Law Repos. 475; Wilson v. Forbes, 2 Dev. R.
30;— and in South Carolina; Henning v. Withers, 2 8. Car. Rep. 584;
Ware v. Weathnall, 2 McCord, 413;—and in Ohio; Backus v. McCoy, 3
Ohio R. 211, 221;—and in Kentucky; Hanson v. Buckner, Dana, 253 ;—
and in Missouri; Tapley v. Lebeaume, 1 Mis. R. 552; Martin v. Long, 3
Mis. R. 391;—and in Jilinois; Buckmaster v. Grundy, 1 Scam. 310. In
Indiana, the question has been raised, without being decided. Blackwell v.
Justices of Lawrence Co. 2 Blackf. 147.

The value of the land at the time of eviction, has been adopted as the
measure of damages in Massachusetts; Gore v. Brazier, 3 Mass. 523; Cas-
well v. Wendell, 4 Mass. 108; Bigelow v. Jones, Id. 512; Chapel v. Bull,
17 Mass. 218;—-andin Maine; Swett v. Patrick, 3 Fairf. 1;— and in Con-
necticut; Sterling v. Peet, 14 Conn. 245;— and in Vermont; Drury »v.
Strong, D. Chipm. R. 110; Park v. Bates, 12 Verm. 481;— and in Louisi-
ana; Bissell v. Erwin, 13 Louis. R. 143. See also 4 Kent, Comm. 474, 475;
Rawle on Covenants of Title, p. 263-280.
308 LAW OF EVIDENCE. [PART Iv.

occasioned by the unlawful taking. And if he waives the
tort, and brings assumpsit for ‘money had and received, he
can recover only what the goods were actually sold for by
the defendant, though it were less than their real value
So, if the plaintiff sue in debt, for the escape of a debtor in
execution, he will recover the whole amount of the judg-
ment and costs, if he recovers at all, though the debtor were
insolvent ; whereas, if he sue in trespass on the case, he will
recover only his actual damages.?

§ 266. It is frequently said that, in actions ex delicto, evi-
dence is admissible in aggravation, or, in mitigation of dam-
ages? But this, it is conceived, means nothing more than
that evidence is admissible of facts and circumstances, which
go in aggravation or in mitigation of the injury itself. The
circumstances, thus proved, ought to be those only which
belong to the act complained of. The plaintiff is not justly
entitled to receive compensation beyond the extent of his
injury, nor ought the defendant to pay to the plaintiff more
than the plaintiff is entitled to receive Thus, in trespass

 

1 See 3 Amer. Jurist, p. 288; Lindon v. Hooper, Cowp. 419; Parker v.
Norton, 6 T. R. 695; Lamaine v. Dorrell, 2 Ld. Raym. 1216; Laugher ».
Brefitt, 5 B. & Ald. 762; Bull. N. P. 82; Jacoby v. Lausatt, 6 S. & R. 300;
Pierce v. Benjamin, 17 Pick. 356, 361; Barnes v. Bartlett, 15 Pick. 78;
Otis v. Gibbs, MS. cited 15 Pick. 207; Whitwell v. Kennedy, 4 Pick. 4663
Jobnson v. Summer, 1 Met. 172; Rogers v. Crombie, 4 Greenl. 274; [Ante,
§ 117, and note; Bartlett v. Bramhall, 3 Gray, 260; Shaw v. Becket, 7
Cush. 442.]

_2 Bonafous v. Walker, 2 T. R. 126; Porter v. Sayward, 7 Mass. 377; 38
Am. Jur. 289. [In an action for taking insufficient bail, the measure of
damages is the injury actually sustained by the judgment creditor; and evi-
dence is competent of the pecuniary condition of the debtor three months
before he was liable to be taken in execution. Danforth v. Pratt, 9 Cush.
818; 9 Met. 564,]

3 What is here said on the subject of evidence in aggravation or mitiga-
tion of damages is chiefly drawn from a masterly discussion of this subject by
Mr. Justice Metcalf, in 3 Amer. Jur. p. 287-313.

4 “There would seem to be no reason why a plaintiff should receive
greater damages from a defendant who has intentionally injured him, than
from one who has injured him accidentally, his loss being the same in both
PART IV.] DAMAGES, 809

on the case for an escape, the actual loss sustained by the-
plaintiff is the measure of damages, whether the escape were
voluntary or, negligent; and in cases of voluntary trespass,
the innocent intentions of the party cannot avail to reduce
the damages below the amount of the injury he has in-
flicted.

§ 267. Injuries to the person, or to the reputation, consists
in the pain inflicted, whether bodily or mental, and in the
expenses and loss of property which they occasion. The
Jury, therefore, in the estimation of damages, are to consider
not only the direct expenses incurred by the plaintiff, but the
loss of his time, his bodily sufferings, and, if the injury was
wilful, his mental agony also;1 the injury to his reputation,
the circumstances of indignity and contumely under which
the wrong was done, and the consequent public disgrace to
the plaintiff, together with any other circumstances belonging
to the wrongful act, and tending to the plaintiff’s discomfort.?
And, on the other hand, they are to consider any circum-

 

cases. It better accords, indeed, with our natural feelings, that the defend-
ant should suffer more in one case than in the other; but points of mere sen-
sibility and mere casuistry are not allowable to operate in judicial tribunals ;
and, if they were so allowed, still it would be difficult to show that a plaintiff
ought to receive a compensation beyond his injury. It would be no less dif
ficult, either on principals of law or ethics, to prove that a defendant ought
to pay more than the plaintiff ought to receive. It is impracticable to make
moral duties and legal obligations, or moral and legal liabilities, coextensive.
The same principles will apply to the mitigation of damages. If the law
awards damages for an injury, it would seem absurd (even without resorting
to the definition of damages) to say that they shall be for a part only of the
injury.” 3 Amer. Jur. 292, 293.

1 If the act were not wilfully done, it seems that the mere mental suffer-:
ing resulting from it forms no part of the actionable injury. Flemington v.
Smithers, 2 C. & P. 292. And see Canning ». Williamstown, 1 Cush. 451.
[Where an action is brought under a statute, (9 & 10 Vict. c. 98,) by the
personal representatives of a deceased person, to recover damages for his
death, the damages must be confined to injuries of which a pecuniary esti-
mate can be made, and they do not include the mental suffering caused to
the survivors by his death. Blake v. Midland R. Co. 10 Eng. Law & Eq.
437.]

2 Coppin v. Braithwaite, 8 Jur. 875.
310 LAW OF EVIDENCE. [PART Iv.

stances of recent and immediate misconduct on the part of
the plaintiff, in respect to the same transaction, tending to
diminish the degree of injury which, on the whole, is fairly
to be attributed to the defendant! Thus, if the plaintiff him-
self provoked the assault complained of, by words or acts so
recent as to constitute part of the res geste ;? or, if the injury
were an arrest without warrant, and he were shown to be
justly suspected of felony ;* or, in an action for seduction, if
it appear that the crime was facilitated by the improper con-
duct or connivance of the husband or father ;* these cireum-
stances may well be considered as reducing the réal amount
of the plaintiff’s claim of damages.

§ 268. It seems, therefore, that, in the proof of damages,
both parties must be confined to the principal transaction
complained of, and to its attendant circumstances and natural
results ; for these alone are put in issue. But where the act
complained of was done in the execution of a contract with
the State, for a work of public benefit, as, for example,
the taking of stone and gravel from the plaintiff’s land, to
build a lock on a public canal, which the defendant had
undertaken to construct; the defendant is entitled to stand

 

1 This principle is freely applied in actions on the case for negligence,
where the rule is, that though there may have been negligence on the part
of the plaintiff, yet, unless he.might, by the exercise of ordinary care, have
avoided the consequence of the defendant’s négligence, he is entitled to
recover; but if, by ordinary care, he might have avoided them, he is the
author of his own wrong. Bridge v. Grand Junction Railway Co. 8 M. &
W. 244, per Parke, B.; Butterfield v. Forrester, 11 Kast, 60; Holding v.
Liverpool Gas Co. 10 Jur. 883; Kennard v. Burton, 12 Shepl. 39; New
Haven Steamboat Co. v. Vanderbilt, 16 Conn. 420. See §§ 220,230. This
rule was ably and fully discussed and explained by Redfield, J., in Robinson
v. Cone, 8. C. Verm. Feb. Term, 1850. See 3 Am. Law Journ. 813, N. S.

2 Lee v. Woolsey, 19 Johns. 329; Fraser v. Berkley, 2 M. & Rob. 3;
Avery v. Ray, 1 Mass. 12.

3 Chinn v. Morris, Ry. & M. 24; Simpson v. McCaffrey, 13 Ohio R. 508.

4 See supra, tit ADULTERY, § 51.

5 [A person guilty of a wilful assault and battery cannot show that, from
the intemperate habits of the other party, the injury was more aggravated
than it would have been upon a person of temperate habits. 11 Cush. 364.]
PART Iv.] - DAMAGES. 311

in the same position as the State would, in the estimation
of damages, and to set off, against the direct value of the
materials taken, any general and incidental benefit resulting
to the owner of the land from the work to which they were
applied.t

§ 268 a. The natural results of a wrongful act, are under-
stood to include all the damage to the plaintiff of which
such act was the efficient cause, though in point of time,
the damage did not occur until some time after the act done.
Thus, in trespass, guare clausum fregit, where the defendant
had broken and dug away the bank of a river in the plain-
tiff’s close, the Jury were properly directed to assess the dam-
ages occurring three weeks afterwards, by a flood, which
rushed in at the breach, and carried away the soil2 So,
where the trespass consisted in pulling down the plaintiff’s
fence, whereby his cattle escaped and were lost; it was held
that the defendant was liable for the value of the cattle, as
the natural consequence of the trespass And it is further
to be observed, that the proof of actual damages may extend
to all facts which occur and grow out of the injury, even up
to the day of the verdict; excepting those facts which not
only happened since the commencement of the depending
suit, but do of themselves furnish sufficient cause for a new
action Upon this general principle it is, that interest is

 

1 May v. Kornhaus, 9 Watts & Serg. 121. :
2 Dickinson v. Boyle, 17 Pick. 78. See supra, §§ 55,56. In an action of
. assumpsit, for the breach of an agreement, whereby “ the plaintiff has been
unnecessarily put to great expenses,” it was held competent for the plaintiff,
under this allegation, to prove and recover for the amount of bills which he
had become legally liable to pay, though he had not yet paid them. Rich-
ardson v. Chassen, 34 Legal Obs. 883 3 11 Jur. 890. And see Dixon »v. Bell,
1 Stark. R. 387. But in trespass for seizing the plaintiff’s goods under color
of a judgment, by means whereof he was forced to pay large costs in setting
aside the judgment, it was held, that these costs were not recoverable. Hol-
loway v. Turner, 9 Jur. 160; 6 Ad. & El. 928, N.S. So, counsel fees have
been rejected. Young v. Tustin, 4 Blackf. 277.

3 Damron v. Roach, 4 Humph. 134.

4 Wilcox v. Plummer, 4 Pet. 172, 182; 3 Com. Dig. 348, tit. Damages; D.
312 LAW OF EVIDENCE. - [part Iv.

computed up to the time of the verdict, in an action for the
non-payment of a sum of money. And, on the like princi-
ple, in actions of trespass and actions on the case, the Jury
are sometimes instructed, in their estimate of damages, to
include the plaintiff’s extra trouble and expenses in prose-
cuting his suit.!

§ 268 b. The damages may also, in a certain sense, be
prospective beyond the time of trial. Thus, in trespass for
breaking the plaintiff’s leg, it was held proper to show the
probable future condition of the limb; but not the conse-
quences of a hypothetical second fracture So, in an action
by the members of a commercial firm, for a libel concerning
their trade, it was held that the Jury might estimate the
damages likely to result to their trade, as the probable con-
sequences of the slander?

§ 269. The character of the parties is immaterial; except
in actions for slander, seduction,* or the like, where it is
necessarily involved in the nature of the action. It is no
matter how bad a man the defendant is, if the plaintiff’s

 

See infra, § 273. Sedgwick on Damages, p. 106-108. Johnson v. Perry, 2
Humph. 572.

1 Linsley v. Bushnell, 15 Conn. 225, 236; Allen v. Blunt, 2 Woodb. & M.
121; Wilt v. Vickers, 8 Watts, 227,235; Rogers v. Fales,5 Barr, 159. See
contra, Good v. Mylin, 8 Barr, 51, overruling the last two cases.

2 Lincoln v. Saratoga Railroad Co. 23 Wend. 425; Johnson v. Perry, 2
Humph. 572; [Curtis v. Rochester and 8S. R. R. Co. 20 Barb. 282. In
Whitney v. Clarendon, 18 Verm, 252, it was'held that a recovery in an ac-
tion of trespass on the case, brought by the father to recover damages sus-
tained by himsclf’ in consequence of personal injuries to his son, is a bar to a
second action by the father to recover for damages sustained in consequence
of the same injury, notwithstanding the recovery in the first action was lim-
ited to damages which accrued prior to the commencement of that suit, and
the second action is brought expressly to recover for loss of service and other
damages sustained subsequent to that time.]

3 Gregory v. Williams, 1 C. & K. 568. And see Ingram v. Lawson, 9 C.
& P. 139, 140, per Maule, J.; 8 Scott, 471, 477, S. C. per Bosanquet, J.;
Hodsall v. Stallbrass, 9 C. & P. 63.

4 See infra, § 274,
PART Iv. ] DAMAGES. 318

injury is not on that account the greater; nor how good
he is, if that circumstance enhanced the wrong. Nor are
damages to be assessed merely according to the defendant’s
ability to pay; for whether the payment of the amount due
to the plaintiff, as compensation for the injury, will or will
not be convenient to the defendant, does not at all affect the
question as to the extent of the injury done, which is the
only question to be determined. The Jury are to inquire,
not what the defendant can pay, but’what the plaintiff.
ought to receive But so far as the defendant’s rank and
influence in society, and therefore the extent of the injury, are
increased by his wealth, evidence of the fact is pertinent to
the issue.? "

§ 270. Whether evidence of intention is admissible, to
affect the amount of, damages, will, in like manner, depend
on its materiality to the issue. In actions of trespass vi et
armis, the secret intention of the defendant is wholly imma-
terial. For if the act was voluntarily done, that is, if it
might have been avoided, the party is liable to pay some
damages, even though he be an infant, under seven years of
age, or a lunatic, and therefore legally incapable of any bad
intention And where an authority or license is given by
law, and the party exceeds or abuses it, though without in-

 

1 See Lofft, R. 774, Ld. Mansfield’s allusion to Berkeley v. Wilford. See
also Stout v. Sprall, Coxe, N. J. Rep. 80; Coryell v. Colbaugh, Id. 77, 78;
6 Conn. R. 27; Supra, § 265. [How far the plaintiff’s occupation. and
means of earning cuppon are admissible to increase the damages in an ac-
tion for an injury to the person under any form of declaration, gure. Bald-
win v. Western R. R. Corp. 4 Gray, 334.]

2 Bennett v. Hyde, 6 Conn. R. 24, 27; Shute v. Barrett, 7 Pick. 86, per
Parker, C. J. See supra, § 89; Infra, §§ 424, 579; Grabe v. Margrave, 3
Scam. 872; Reed v. Davis, 4 Pick. 216 ; McNamara v. King, 2 Gilm. 432;
McAlmont v. McClelland, 14 S. & R. 359; Larned v. Buffinton, 3 Mass.
546.

3 Weaver v. Ward, Hob. 134; Bessey v. Olliot, T. Raym. 467; Gilbert
». Stone, Aleyn, 35; Sty. 72, S. C.; Sikes v. Johnson, 16 Mass. 289; Bing-
ham on Infancy, pp. 110,111; 3 Com. Dig. 627, tit. Enfant, D. 4; Mac-
pherson on Infants, p. 481; Shelford on Lunatics, p. 407; Stock on Non
Compotes Mentis, p. 76; 3 Am. Jur. 291, 297.

VOL. II. 27
314 LAW OF EVIDENCE. [PART IV.

tending so to do, yet he is trespasser ab initio; and damages
are to be given for all that he has done, though some part of
it, had he done nothing more, might have been lawful! His
secret intention, whether good or evil, cannot vary the
amount of injury to the plaintiff. So it is, if one set his foot
upon his neighbor’s land, without his license or permission ;
or, if he injure him beyond, or even contrary to his intention,
if it might have been avoided And where, to an action of
trespass, a plea of per infortunium was pleaded in bar, it was
held bad, on demurrer, the Court declaring that damages
were recoverable “according to the hurt or loss.”? In all
such cases of voluntary act, the intent is immaterial, the
only question being, whether the act was injurious, and to
what extent.

§ 271. In certain other actions, such as case, for a malicious
prosecution, or for false representations of another person’s
credit in order to induce one to trust him,§ or for slander, the
intention of the defendant is of the gist of the action, and
must therefore be shown to be malicious; not to affect the
amount of damages, but to entitle the plaintiff to recover any

 

1 Six Carpenters’ case, 8 Co. 146; Bagshaw v. Gaward, Yelv. 96; Sack-
rider v. McDonald, 10 Johns. 253, 256; 3 Am. Jur. 297, 298; Kerbey v.
Denby, 1 M. & W. 336.

2 Russell v. Palmer, 2 Wils. 325; Varill v. Heald, 2 Greenl. 92, per Mel-
len, C. J.; Brooks v. Hoyt, 6 Pick. 468; Bacon’s Elements, p. 31; 2 East,
104, per Ld. Kenyon.

3 Weaver v. Ward, Hob. 134.

4 Underwood v. Hewson, 1 Stra. 596; 1 Chitty on Plead. 120; Weaver
v. Ward, Hob. 134; Taylor v. Rainbow, 2 Hen. & Munf. 423; Wakeman
v. Robinson, 1 Bing. 213. The rule is, that, under the general issue, any
evidence is admissible, which tends to show that the accident resulted en-
tirely from a superior agency; for then it was no trespass; but that any
defence, which admits that the trespass complained of was the act of the
defendant, must be specially pleaded. Hall v. Fearnley, 3 Ad. & El. 919,
N. 8.

51 Chitty on Pl. 405, (7th edit.) ; Sutton v. Johnstone, 1 T. R. 493, 545;
3 Am. Jur. 295; Stone v. Crocker, 24 Pick. 81, 83; Grant v. Duel, 8 Rob.
(Louis.) R. 17.

6 Vernon v. Keyes, 12 East, 632, 636 ; Young v. Covell, 8 Johns. 23.
PART Iv.] DAMAGES. 315

damages whatever. Thus, in an action for a libel, either
party may give evidence to prove or disprove the existence
of a malicious intent, even though such evidence consist of
other libellous writings ; but if they contain matter action-
able in itself, the Jury must be cautioned not to increase the
damages on account of them.

§ 272. But where an evil intent has manifested itself in
acts and circumstances, accompanying the principal transac-
tion, they constitute part of the injury, and, if properly
alleged, may be proved, like any other facts material to the
issue. Thus in trespass for taking goods, besides proof of
their value, the inconvenience and injury occasioned to the
plaintiff by taking them away, under the particular circum-
stances of the case, and the abusive language and conduct of
the defendant at the time,? are admissible in evidence to. the
Jury, who may give damages accordingly. And evidence of
improper language or conduct of the defendant is also admis-
sible, under proper allegations, in an action of trespass on the
case, or of trespass quare clausum fregit, as constituting part
of the injury.2 And, generally, whenever the wrongful act of

 

1 Pearson v. Lemaitre, 5 M. & G. 700; 7 Jur. 748.

2 Churchill v. Watson, 5 Day, 140; Tilden v. Metcalf, 2 Day, 259; John-
son v. Courts, 3 Har. & McHen. 510; Ratliff v. Huntley, 5 Ired. 545; Wil-
kins v. Gilmore, 2 Humph. 140; Huxley v. Berg, 1 Stark. R. 98; Curtis v.
Hoyt, 19 Conn. 154, 170; Huntley v. Bacon, 15 Conn. 267, 273.

3 Bracegirdle v. Orford, 2 M. & 8. 77; Coppin v. Braithwaite, 8 Jur. 875 ;
Cox v. Dougdale, 12 Price, 708, 718; Merest v. Harvey, 5 Taunt. 442. In
this case, Gibbs, C. J., expressed himself in these terms: “I wish to know,
in a case where a man disregards every principle, which actuates the con-
duct of gentlemen, what is to restrain him except large damages? To be
sure, one can hardly conceive worse conduct than this. What would be
said to a person in a low situation of life, who should behave himself in this
manner? I do not know upon what principle we can grant a rule in this
case, unless we were to lay it down that the Jury are not justified in giving
more than the absolute pecuniary damage that the plaintiff may sustain. Sup-
pose a gentleman has a paved walk in his paddock, before his window, and
that a man intrudes and walks up and down before the window of his house,
and looks in while the owner is at dinner, is the trespasser to be permitted
to say, ‘here is a halfpenny for you, which is the full extent of all the mis-
316 LAW OF EVIDENCE. [PART Iv.

the defendant was accompanied by aggravating circum-
stances of indignity and insult, whether in the time, place,
or manner, though they may not form a separate ground
of action, yet being properly alleged, they may be given in
evidence, to show the whole extent and degree of the injury.
Thus, in an action upon an agreement to carry the plaintiff
to a certain place, assigning a breach in causing him to be
disembarked at an intermediate place, in a disgraceful man-
ner and with contemptuous usage and insulting language,
whereby he sustained damage; it was held that the allega-
tion was proper, and that evidence of such‘circumstances was
rightly received.2 So, also, where to an action of trespass
for false imprisonment the defendant pleaded, by way of
justification, that the plaintiff had committed a felony, but
abandoned the plea at the trial, and exonerated the plaintiff
from the charge, it was held that the Jury might lawfully
consider the putting of such a plea on the record as persist-
ing in the share, and estimate the damages accordingly.
So, where in an assault and battery, the defendant avowed
an intent to kill the plaintiff And, on the other hand, the
defendant may show any other circumstances of the transac-
tion, in mitigation of the injury done by his trespass. Thus,
where the defendant shot the plaintiff’s dog soon after he
had been worrying the defendant’s sheep, this fact, and the
habits of the animal, were held admissible in evidence for

 

chiefs I have done?’ ‘Would that be a compensation? I cannot say that
it would be.” 5 Taunt. 443. In trespass for entering the plaintiff’s house,
evidence may be given of keeping the plaintiff out, for that is a consequence
of the wrongful entry. Sampson v. Coy, 15 Mass. 493. So, in trespass
for destroying a mill-dam, damages may be recovered for the interruption of
the use of the mill. White v. Moseley, 8 Pick. 356.

1 Sears v. Lyons, 2 Stark. R. 282, [317]; 3 Am. Jur. 303, 312; 3 Wils.
19, per Bathurst, J.; Woert v. Jenkins, 14 Johns. 352; Pratt v. Ayler, 4 H.
& J. 448; Jennings v. Maddox, 8 B. Monr. 432; Duncan »v. Stalcup, 1 Dev.
& Bat. 440,

2 Coppin v. Braithwaite, 8 Jur. 875. And see Keene v. Lizardi, 8
Louis. 33. \

3 Warwick v. Foulkes, 12 M. & W. 507.

4 Pratt v. Ayler, 4 H. & J. 448.
PART Iv.] DAMAGES. 317

the defendant in the estimation of damages.!_ And in tres-
pass de bonis asportatis, he may show that the goods did not
belong to the plaintiff, and that they have gone to the use of
the owner;? or, that belonging to the plaintiff, they have
lawfully gone to his use. So, where the defendant had
seized and destroyed the plaintiff’s game-cocks, under a war-
rent to search for gaming implements, it was held, that the
Jury might consider, in mitigation of the injury, the good
motives of the defendant, and his belief that he was acting
in the due execution of legal process; in which case the
measure of damages was the actual value of the animals, as
articles of merchandise.*

§ 273. It may here also be remarked, that if the defendant,
while he is an actual trespasser in the plaintiff’s house or
close, commit any other acts of trespass against the person
of the plaintiff, his wife, children, or servants, these acts and
their consequences may be alleged and proved in an action
of trespass quare clausum fregit, as matter in. aggravation of
the injury It is on this ground that the plaintiff, in an
action of trespass for breaking and entering’ his house, has
been permitted to allege and recover full damages for the
debauching of his daughter and servant. It makes no differ-
ence that the plaintiff may have a separate action for these
additional wrongs, provided it be an action of trespass, or of
trespass on the case; and not a remedy in another form. If
he sues in trespass, and alleges the debauching of his servant
in aggravation, the breach and entry of the house, being
the principal fact complained of, must be proved, or the ac-
tion will not be maintained. And so it is, in regard to any

 

1 Wells v. Head, 4 C. & P. 568.

2 Squire v. Hollenbeck, 9 Pick. 551. And see Pierce v. Benjamin, 14
Pick. 361.

3 Kaley v. Shed, 10 Met. 317. See infra, §§ 276, 635 a; Anthony v. Gib-
bert, 4 Blackf. 348.

4 Coolidge v. Choate, 9 Law Rep. 205; 11 Met. 79. See, also, Reed v.
Bias, 8 Watts & Serg. 189; Conard v. Pacific Ins. Co. 6 Pet. 262, 282.

5 Bennett v. Alcott, 2 T. R. 166; Shafer v. Smith, 7 H. & J. 68. =e

6 Bennett v. Alcott, 2 T. R. 166; Ream v. Rank, 3 8. & R. 215; 2

27 *
318 LAW OF EVIDENCE. [PART Iv.

other consequential damages alleged in an action of trespass ;
for wherever the principal trespass, namely, the entry into
the house or close, is justified, it is an answer to the whole
declaration!

§ 274. But, though the plaintiff may generally show all
the circumstances of the trespass tending in aggravation of
the injury, it does not therefore follow, that the defendant
may in all cases, show them in mitigation; for he may
preclude himself by his mode of defence, as well as the
plaintiff may, as we have already seen, by his election of
remedy. Thus, itis a sound rule in pleading, that matter,
which goes in complete justification of the charge, must be
specially pleaded, in order that the plaintiff may be prepared
to meet it; and cannot be given in evidence under the gen-
eral issue, for this would be a surprise upon him? If, there-
fore, the defendant pleads the general-issue, this is notice to
the plaintiff that he has nothing to offer in evidence, which
amounts to a justification of the charge; and hence no evi-
dence of matter which goes in justification will be received,
even in mitigation of damages. Thus, in trespass for an
assault and battery, where the defendant, under the general
issue offered to prove that the beating was inflicted by way
of correcting the misconduct of the plaintiff, who was a

 

Stark. Ev. 813; 3 Am. Jur. 298; Dean v. Peale, 5 East, 45; Woodward v.
Walton, 2 New R. 476; 1 Smith’s Leading Cases, [219,] (Am. edit.) notes.
See 43 Law Lib. 328, 330. Any other consequential damage to the plaintiff
may be alleged and proved as matter of aggravation. 1 Chitty on Plead.
347, 348; Anderson v. Buckton, 1 Stra. 192; Heminway v. Saxton, 3 Mass.
222; Sampson v. Coy, 15 Mass. 498. But the proof must be restricted ‘to
damages resulting to the plaintiff alone, and not to another, nor to himself
jointly with another. Edmonson v. Machell, 2 T. R. 4. See supra, §
268.

1 Taylor v. Cole, 3 T. R. 292; 1 H. Bl. 555; Bennett v. Alcott, 2 T. R.
166; Monprivatt v. Smith, 2 Campb. 175; Phillips v. Howgate, 5 B. & Ald.
220; Ropes v. Barker, 4 Pick. 239.

2 Co. Lit. 282 6, 288 a; 1 Chitty on Plead. 415; Trials per Pais, p. 403,
(6th edit.); 83 Amer. Jur. 301; Watson v. Christie, 2 B. & P. 224, and
note (a).
PART IV.] DAMAGES. 319

seaman on board the ship of which the defendant was master,
the evidence was held inadmissible; and the Jury were in-
structed, that they could neither increase the damages beyond
a compensation for the injury actually sustained, nor lessen
them on account of the circumstances under which the beat-
ing was given! And in trespass by an apprentice against
his master, for an assault and battery, the defendant cannot,
under this issue, give evidence of an admission by the plain-
tiff, that his master had beaten him for misconduct.2 So, in
an action of slander, the defendant cannot, under the general
issue, give the truth of the words in evidence, even in miti-
gation of damages ;? nor can he, for this purpose, show that
the plaintiff has for a long time been hostile to him, and has
proclaimed that he did not wish to live with him on terms
of peace.*

.

§ 275. In actions of slander, it is well settled that the
plaintiff’s general character is involved in the issue; and
that therefore evidence, showing it to be good or bad, and
consequently of much or little value, may be offered on
either side to affect the amount of damages.° But whether
the defendant will be permitted, under the general issue, to
prove general suspicions, and common reports of the guilt of

 

1 Watson v. Christie, 2 B. & P. 224; Bull. N. P. 16; 1 Salk. 11, per
Holt, C. J.

2 Pujolas v. Holland, 1 Longf. & Towns. 177.

3 Underwood v. Parkes, 2 Stra. 1200; Mullett v. Hulton, 4 Esp. 248; 1
Chitty on Plead. 433; Shepard v. Merrill, 13 Johns. 475. Nor can the
plaintiff prove the speaking of other slanderous words, in aggravation of the
damages ; though he may offer such evidence, in proof that the words charged
were spoken maliciously. See 3 Am. Jur. 293, 294; 2 Stark. on Slander,
p- 48-51, [54-57,] Wendell’s edit.

4 Andrews v. Bartholomew, 2 Met. 509. ;

5 2 Stark. on Slander, p. 77-86, [88-97,] by Wendell; 3 Am. Jur. 294,
295; Wolcott v. Hall, 6 Mass. 514, 518. Ifthe declaration states, that the
plaintiff had never been suspected to be guilty of the crime imputed to him,
the defendant, under the general issue, may show that he was so suspected,
and that in consequence of such suspicions his relatives and acquaintance
had ceased to visithim. Earl of Leicester v. Walter, 2 Campb. 251.
320 LAW OF EVIDENCE. _ [part Iv.

the plaintiff, in mitigation of damages, is not universally
agreed! It seems, however, that, where the evidence goes
to prove, that the defendant did not act wantonly and under
the influence of actual malice, or is offered solely to show
the real character and degree of the malice, which the law
implies from the falsity of the charge, all intention of proving
the truth being expressly disclaimed, it may be admitted,
and of course be considered by the Jury.? Evidence of any
misconduct of the plaintiff, giving rise to the charge, such
as an attempt by him to commit the crime? or opprobrious
language addressed by him to the defendant, either verbally
or in writing, contemporaneously with the charge complained
of, or tending to explain its meaning, may also be shown in
mitigation of damages.* So, if, through the misconduct of
the plaintiff, the defendant was led to believe that the charge
was true, and to plead in justification accordingly, this may
be shown to reduce the damages.5 And if the charge was
made under a mistake, upon discovering of which, the

 

\

1 In England, and in Connecticut, Pennsylvania, Maryland, Kentucky, and

, South Carolina, such evidence is admissible. In Massachusetts, New York,

‘and Virginia, it is not. See 2 Stark. on Slander, p. 84, note (1), by Wen-

dell; Wolcott v. Hall, 6 Mass. 514; Alderman v. French, 1 Pick.1; Bod-

well v. Swan, 3 Pick. 376; Root v. King, 7 Cowen, 613; Matson v. Buck, 5

Cowen, 499; McAlexander v. Harris, 5 Munf. 465. See also Boies v. Mc-
Allister, 3 Fairf. 310; Rigden v. Wolcott, 6 G. & J. 413.

2 2 Stark. on Slander, p. 88, note (1), by Wendell; Root v. King, 7
Cowen, 613; Gilman v. Lowell, 8 Wend. 582; Mapes v. Weeks, 4 Wend.
659, 662.

3 Anon. cited arg. 2 Campb. 254; 2 Stark. on Slander, p. 83, note (1),
by Wendell.

4 Hotchkiss v. Lathrop, 1 Johns. 286; May v. Brown, 8 B. & C. 113;
Wakley v. Johnson, Ry. & M. 422; Child v. Homer, 18 Pick. 503; Larned
v. Buffington, 3 Mass. 553; Watts v. Frazer, 7 Ad. & El. 223; Beardsley v.
Maynard, 4 Wend. 336; 7 Wend. 560; Gould v. Weed, 12 Wend. 12;
Davis v. Griffith, 4 G. & J. 342.

5 Larned v. Buffington, 3 Mass. 546. But see Alderman v. French, 1 Pick.
1,19. The fact of the defendant’s taking depositions to prove the truth of
the words, and afterwards declining to justify them, is inadmissible in evi-

+ dence for the plaintiff, to enhance the damages. Boswell v. Osgood, 3 Pick.

879. See also Bradley v. Heath, 12 Pick. 163.
PART Iv.] DAMAGES. 321

defendant forthwith retracted it in a public and proper
manner, and by way of atonement, this also may be shown
in evidence, for the same purpose.! So, the extreme youth
or partial insanity of the defendant, may be shown, to con-
vince the Jury, that the plaintiff has suffered but little in-

jury?

§ 276. In trover, the value of the property at the time of
the conversion, if it has not been restored and accepted by
the plaintiff, with interest on that amount, is ordinarily the
measure of damages. It has been further held, that the Jury
may, in their discretion, find the value at a subsequent time.
Thus, in trover for Hast India Company’s warrants for cotton, .
where the value at the time. of the conversion was six pence
the pound, but it afterwards rose to upwards of ten pence,
the Jury were left at liberty to find the latter price as the
value; for though the plaintiff might with money have re-
placed the goods at the former price, yet he might not have
been in funds for that purpose’ And in England, the plain-
tiff is permitted to recover any special damage which he may
allege and be able to prove as the result of the wrongful act
of the defendant. Thus, under a count in trover for the
conversion of tools, by means. whereof the plaintiff was pre-
vented from working at his trade of a carpenter, and was
greatly impoverished, they being the implements of his trade;
it was held that the special damage directly flowing from the

 

1 Larned v. Buffington, 3 Mass. 546, as qualified in 1 Pick. 19; Mapes v.
Weeks, 4 Wend. 663; Hotchkiss v. Oliphant, 2 Hill, (N. Y.) R. 515; 2
Stark. on Slander, p. 95, note, by Wendell; O’Shaughnessy v. Haydn, 2 Fox
& Sm. 329. ,

2 Dickinson v. Barber, 9 Mass. 225, 228; 8 Am. Jur. 297. But the de-
fendant will not be permitted to offer in mitigation of damages, any evidence
impeaching his own character for veracity. Howe v. Perry, 15 Pick. 506.

3 8 Campb. 477, per Ld. Ellenborough; Pierce v. Benjamin, 14 Pick,
356, 361; Parks v. Boston, 15 Pick. 198, 206, 207; Stone v. Codman, Id.
297, 300; Greenfield Bank v. Leavitt, 17 Pick. 1; Hepburn v. Sewell,.5 H.
& J. 212. See Sedgwick on Damages, ch. xix.

4 Greening v. Wilkinson, 1 C. & P. 625.
822 LAW OF EVIDENCE. [PART Iv.

detention of his tools was recoverable! But in the United
States, upon consideration of the rule, it has been held safer
to adhere to the value at the time of the conversion, with
interest. But if the defendant has enhanced the value of
the goods by his labor, as, for example, if he has taken logs,
and converted them into boards, the plaintiff is permitted to
recover the enhanced value, namely, the value of the boards,
and is not confined to the value of the material, either at the
place of taking, or of manufacture.2 Where the subject isa
written security, the damages are usually assessed to the
amount of the principal and interest due upon it If the
plaintiff has himself recovered the property, or it has been
restored to him and accepted, the actual injury occasioned by
the conversion, including the expenses of the recovery, will
form the measure of damages ;4 and if the property in whole
or in part has been applied to the payment of the plaintiff’s
debt or otherwise to his use, this may be considered by the
Jury as diminishing the injury and consequently the dam-
ages.

§ 277. In all actions for a joint tort, against several defend-
ants, the Jury are to assess damages against all the defendants ©
jointly, according to the amount which, in their judgment,
the most culpable of the defendants ought to pay.6 And if

 

1 Bodley v. Reynolds, 10 Jur. 310. See also Davis v. Oswell, 7 C. &P.
804.

2 Greenfield Bank v. Leavitt, 17 Pick. 3; Baker v. Wheeler, 8 Wend.
505; [Rice v. Hollenbeck, 19 Barb. 664.]

3 Mercer v. Jones, 3 Campb. 477.

£ Greenfield Bank v. Leavitt, 17 Pick. 3; Hepburn v. Sewell, 5 H. &
J. 12.

5 Pierce v. Benjamin, 14 Pick. 356, 361; Kaley v. Shed, 10 Met. 317.
[In an action of trover, if the defendant at the time of the conversion, had a
lien on the goods to a certain amount, the rule of damages is the value of
the goods, deducting the amount of the lien and adding interest on the bal-
ance. Fowler v. Gilman, 13 Met. 267.]

8 Brown v. Allen, 4 Esp. 158; Lowfield v. Bancroft, 2 Stra. 910; Bull.
N. P.15; Austen », Willward, Cro. El. 860; Heydon’s case, 11 Co.5; On-
slow v. Orchard, 1 Stra, 422; Smithson v. Garth, 8 Lev. 324; 3 Com.

4
PART Iv.| DAMAGES. 323

several damages are assessed, the plaintiff may elect which
sum he pleases, and enter judgment de melioribus damnis,
against them all! But if several trespasses are charged in
the declaration, and the defendants plead severally, and are
found severally guilty of distinct trespasses, the damages
ought to be severed and assessed, for each trespass against
him who committed it.?

§ 278. The averment of alia enormia, at the end of a
declaration in trespass, seems to have been designed to ena-
ble the plaintiff to give evidence of circumstances belonging
to the transaction, which were not in themselves actionable,
and which could not conveniently be put upon the record,
And it has frequently been said that, under this averment,
things may be proved, which could not be put upon the
record because of their indecency; and that, therefore, in
trespass for breaking and entering the plaintiff’s house, he
might, under this averment, prove that the defendant, whilst
there, debauched his daughter. When this doctrine was first
advanced, it was generally understood that no action would
lie for this latter injury, unless as an aggravafion of the
former ; and hence, the Judges may have been led to find a
special reason for admitting this evidence. But since it is
well settled, and has become the ordinary course, to sue spe-

 

Dig. 348, tit. Damages, E. 6; Elliot v. Allen, 1 M. G.& S.18. [In-an ac-
tion of trover against two, one of whom is defaulted, and the other found
guilty by the Jury, there is but one assessment of damages, and the judg-
ment is joint. Gerrish v. Cummings, 4 Cush. 391; Gardner v. Field, 1
Gray, 151.]

1 Heydon’s case, 11 Co. 5; Headley v. Mildmay, 1 Roll. R. 395, pl. 17;
7 Vin. Abr. 303, pl. 5, S. C.; Johns v. Dodsworth, Cro. Car. 192; Doune
v, Estevin de Darby, 44 E. 3, 7; F. N. B.[107,] E.; Walsh v. Bishop,
Cro. Car. 243; Rodney v. Strode, Carth. 19; 2 Tidd’s Pr. 896, (9th edit.) ;
Halsey v. Woodruff, 9 Pick. 455.

2 Propr’s of Kennebec Purchase v. Bolton, 4 Mass. 419. Where an
injury was done by two dogs jointly, who belonged to several owners, it
was held that each owner was liable only for the mischief done by his own
dog. Buddington v. Shearer, 20 Pick. 477; Russell v. Tomlinson, 2 Conn.
R. 206,
324 LAW OF EVIDENCE. [PART Iv.

cially for this injury to a daughter and servant, as well as
for criminal conversation with a wife, and to allege the main
facts upon the record, no reason is perceived for retaining this
anomaly in practice. There is no injury, however indecent
in its circumstances, but may be substantially stated with
decency on the record ; the law permitting and even requir-
ing parties, as well as witnesses, to state in general terms
and with indirectness, those things which cannot otherwise
be expressed with decency ; and to this extent, at least, every
party is entitled, by the settled rules of pleading, as well as
by the reason of the thing, to be informed of that which is
to be proved against him. The circumstances and necessary
results of the defendant’s wrongful act may be shown with-
out this averment; and as to those consequences, which,
though natural, aid. not necessarily follow, they must, as we
have seen,! be specially alleged?

 

1 See supra, § 253.

2 See the observations of Mr. Peake, Evid. p. 505, by Norris; Mr. Phil-
lips, 2 Phil. Evid. 180; Id. p. 136, (2d Am. ed.); and Mr. Starkie, 2 Stark.
Evid. 815; 1* Chitty on Pl. 412, (7th ed.); Chitty’s Precedents, p. 716,
note (k); Bull. N. P. 89; Lowden v. Goodrick, Peake’s Cas. 46; Pettit v.
Addington, Id. 62.

ae
PART IY.| DEATH, 325

DEATH.

§ 278 a. Tur amount of evidence required to establish the
fact of death, is somewhat affected by the nature of the case
in which the question arises. In trials for homicide, this is,
of necessity, to be proved at the outset, in the most satisfac-
tory manner, and beyond any reasonable doubt; such being
the rule of evidence in the criminal law.!_ This, therefore, is
the highest degree of proof demanded of this fact. In civil
cases it is ordinarily sufficient to prove it by the mere pre-
ponderance of evidence ; and yet here there is a difference in
the amount of. proof regained, according to the materiality of
the fact to the subject in controversy. Thus, in a claim of
title by descent or succession, or of the right of administra-
tion, the party is held to a more strict proof of the death of
the ancestor, than in cases where the question arises inciden-
tally and collaterally in the proceedings, as, for example, on
a motion to read the deposition of a witness, or to give evi-
dence of his testimony at a former trial, on the ground of his
subsequent decease; for these are cases addressed to the dis-
cretion of the Court, in which the consequences of mistake
are comparatively of not much importance, and are without
difficulty retrieved.”

§ 278 b. In the United States, the proof of death, in cases
not criminal, is required in claiming title to land by descent,
as heir, against a stranger; or as dowress, against any tenant
of the freehold; or, in the Probate Courts, in an application
for letters testamentary, upon the probate of a will; or of
letters of administration; or, in a claim of the insurance-
money, upon a policy on the life of another, by the party to

 

1 See post, Vol. 8, §§ 30, 130, 131, 132.
2 Carrington v. Cornock, 2 Sim. 567.
VOL. IL. 28
326 LAW OF EVIDENCE. [PART Iv.

whom it was made payable at his death; or in a claim of
wages or pension or bounty-money, by the widow or child
of one entitled under the laws regulating the military, land,
or naval service.

§ 278 c. The direct and most satisfactory proof of the death
of a person, is the testimony of those who saw him die, or
who, having known him when living, saw and recognized
his body after his decease. ‘In the former of these cases, if
the circumstances were of a nature to leave the fact in any
degree doubtful, as for instance, in apparent sudden death,
whether from the inhalation of noxious gases, or other acci-
dent, the testimony of a medical person is desirable, and, if
possible, should be obtained.

§ 278 d. The indirect evidence of death, is either documen-
tary, or oral. Among the documentary instruments of proof
which have been received, may be enumerated Parish and
other Registers, where such are required by law to be kept;?
Muster Rolls and Returns, in the military and naval ser-
vice 32. Coroners’ Inquests;3 Probate of the will of the de-
ceased, or the grant of administration on his estate;* the
assignment of the widow’s dower, upon writ, or other legal
proceedings; previous litigation respecting the estate of the
deceased, terminated in favor of those claiming as heirs.
The identity of the person is, prima facie, inferred from the
identity of the name; except where the place of residence
was in a large city or town; in which case, proof of some
additional circumstances seems to be necessary.®

§ 278 e. The oral evidence, indirectly proving death, con-

 

1 See ante, Vol. 1, §§ 483, 484, 485, 493; Bull. N. P. 247; Doe v. An-
drews, 15 Ad. & El. 756, N.S. A consul’s certificate is not evidence of the
death of a person. “Morton v. Barrett, 1 Applet. 109.

2 Ibid.

3 Ibid. Sergeson v. Sealey, 2 Atk. 412; 1 Saund. 362, note (1), by Wil-
liams.

4 Infra, §§ 855, 693; Ante, Vol. 1, § 550.

5 Hubback on Succession, pp. 103, 464, 465.
PART IV.] DEATH. 327

sists of those circumstances from which the death of the per-
son may reasonably be inferred ; such as, long absence, with-
out any intelligence respecting him, reputation in the family,
and their conduct thereupon, and other circumstances. In
regard to long absence, this alone, without the aid of other
facts, has been said not to furnish any presumption of the
party’s death; on the ground of another rule, namely, that
the last-proved state of things is presumed to continue; and -
that, therefore, the existence of a living person being once
shown, he is presumed to continue alive, and the burden of
proof is upon the party asserting his death. This presump-
tion is held by the civilians to continue for a hundred years ;!
and it has been applied in Courts of Common Law to almost
as great an extent.2 But it is conceived that the presump-
tion of continuance can justly be applied only until a con-
trary presumption is raised, from the nature of the subject.’
It would surely be unreasonable to presume that an orange,
proved to have existed fresh ten years ago, is still sound; a
contrary presumption having arisen, from the ascertained
average duration of that fruit, in a sound state. On the
same principle, the average duration of human life, after any
given age, being now ascertained and stated in well authenti-
cated tables, which have been recognized by the Courts as
safe rules in the calculation of the value of annuities, and in
other similar cases; no good reason is perceived, why the
same tables may not be resorted to, as furnishing ground

 

1 Vivere etiam usque ad centum annos, quilibet presumitur. Corpus
Juris Glossatum, tom. 2, p. 718. And see Mascardus, De Probat. vol. 1,
concl. 108, n. 5; Id. vol. 8, concl. 1075, n. 1; 1078, n. 6.

2 In Atkins v. Warrington, it is said that the Court of Queen’s Bench
refused judicially to presume that a person, alive in the year 1034, was not
living in the year 1827. See Best on Presumptions, § 139. Andin Benson
v. Olive, 2 Stra. 920, when the deposition of a witness, examined in 1672, was
offered to be read at atrial had in 1731, on the presumption that the witness
was dead; Reynolds, C. B., refused to admit it, without proof of proper but
ineffectual search and inquiry after him. See also, Hubback on Succession,
pp- 167, 168.

3-See ante, Vol. 1, § 41; 2 Cruise’s Dig. tit. 16, ch. 1, § 25; Id. ch. 3, §§ 8,
9,10, (Greenl. ed.) [2d ed. 1856]; Fearne, Rem. p. 21-23.
328 LAW OF EVIDENCE. [PART Iv.

legally to presume the death of a person, after the lapse of
the period of the probable duration of his life, in the absence
of any evidence to the contrary.

§ 278 f. But however this may be, as a mere presumption
of law, the rule is now settled, for most judicial purposes,
that the presumption of life with respect to persons of whom
no account can be given, ends at the expiration of seven years
from the time they were last known to be living; after
which, the burden of proof is devolved on the party asserting
the life of the individual in question2 The issue, in such
cases, is an issue of fact; and the Jury are at liberty to find
the fact of death within the period of seven years, upon the
circumstances proved in the case.3 Among the circumstances,
material to this issue, are, the age of the party, his situation,
habits, employment, state of health, physical constitution ;
the place or climate of the country whither he went, and
whether he went by sea or land; the facilities of communi-
cation between that country and his former home; his habit
of correspondence with his relatives; the terms of inter-
course on which he lived with them; in short, any circum-
stances, tending to aid the Jury in finding the fact of life or
death. There must also be evidence of diligent inquiry at
the place of the person’s last residence in this country, and
among his relatives, and any others who probably would
have heard of him, if living; and also at the place of his
fixed foreign residence, if he was known to have had any.*

§ 278 @. Reputation in the family and family conduct ad-

 

1 See Hubback on Succession, pp.171,172. But see Jn re Hall, Wallace,
dr. Rep. 85.

2 See ante, Vol. 1,§ 41; Best on Presumptions, § 140; Hubback on Suc-
cession, p. 170-173; Thorne v. Rolff, Dyer, 185 a; Gilleland v. Martin, 3
M’Lean, 490; Doe v. Jesson, 6 East, 85 ; [Emerson v. White, 9 Foster, N.
H. 482; Whiteside’s Appeal, 23 Penn. State R. (11 Harris,) 114.]

3 Tbid.; White v. Mann, 13 Shepl. 361.

4 See Hubback on Succession, p. 172-174; McCartee v. Camel, 1 Barb.
Ch. R. 455; Doe v. Andrews, 15 Ad. & El. 756, N.S.
PART Iv.] DEATH. 329

missible in cases of pedigree, which have been treated in the
preceding volume, are also admissible in proof of the death
of a member of the family.

§ 278 h. It may be added, that where the subject of the
claim is paramount, so that no injury to the absent owner
can result from any mistake in regard to his death; as, for
example, real property, in an action for the mere possession ;
death may be presumed from circumstances much less
weighty and persuasive, than will be required where the sub-
ject may be irretrievably lost to the right owner, by payment
or delivery to the wrong person. Thus, in an action on a
policy of insurance on the life of the assured, payable to the
plaintiff on his death, Lord Mansfield instructed the Jury, that
if the evidence left the time of the death so doubtful in their
minds that they could not form an opinion, they ought to
find for the defendant.?

 

1 Ante, Vol. 1, § 108-106 ; Cochrane v. Libby, 6 Shepl. 39.

2 Patterson v. Black, Park, Ins. 433, 434, (2d Am. ed.) And see Masten
v. Cookson, 2 Eq. Cas. Abr. 414; Doe v. Deakin, 4 B. & Ald. 433; Hub-
back on Succession, p. 176-175. For the case of commorientes, or persons
perishing in the same calamity, see ante, Vol. 1, §§ 29, 30; Mochring v.
Mitchell, 1 Barb. Ch. R. 264. [The Massachusetts Statute (1842, c. 89),
provides that “the action of trespass on the case, for damage to the person,
shall hereafter survive, so that in the event of the death of any person en-
titled to bring such action, or liable thereto, the same may be prosecuted,
or defended, by or against his executor or administrator, in the same man-
ner as if he were living.” In Kearney & Mann v. Boston and Worcester
R. R. Corp. 9 Cush. 108, it was held that the administrator could not main-
tain an action under the statute, where the death of the intestate was instan-
taneous with the collision, and that, as after the collision there was in the
intestate only a momentary spasmodic struggle, the death was instanta+
neous. ]

28 *
830 LAW OF EVIDENCE. [PART Iv.

DEBT.

§ 279. Tux action of debt lies for a sum certain; whether
it have been rendered certain by contract between the par-
ties, or by judgment, or by statute, as when this remedy is
given for a penalty, or for the escape of a judgment debtor1

 

1 [Knowles v. Eastham, 11 Cush. 429; Allen v. Lyman, 1 Williams, (Vt.)
20; Addison v. Preston, 10 Eng. Law & Eq. 489. Debt will lie for penal-
ties and forfeitures imposed by statute, and where no form of action is given.
Vaughan v. Thompson, 15 Ill. 39 ; Portland Dry Dock, &c. Co. v. Portland, 12
B. Mon. 77. It will not lie to recover dues payable out of a particular fund.
Insane Hospital v. Higgins, 15 Ill. 185. Where a statute creates a liability
to pay money, and prescribes no particular form of action for its recovery,
an action of debt is the appropriate remedy. Strange v. Powell, 15 Ala. 452.
An action of debt is not maintainable upon an agreement that the defendant
would carry certain goods for the plaintiff, in consideration that the plaintiff
would carry a like quantity for the defendant. Bracegirdle v. Hincks, 24
Eng. Law & Eq. 534.

An action of debt may be sustained on an obligation to pay a certain sum
of money with interest, “which sum may be discharged in notes or bonds
due on good solvent men residing in the county of Randolph, Virginia.”
Butcher v. Carlile, 12 Gratt. (Va.) 520. Such an action will lie upon the
decree of a Court of Equity for the payment of a specific sum, whenever it
can be brought upon the judgment of a Court of Law. The records of both
Courts are of equal authority. Pennington v. Gibson, 16 How. (U. 8.) 85.

An action of debt may be sustained upon an instrument under seal, for a
sum certain, payable at a certain time and to a specifted person, and any re-:
cital of the consideration for which it was given may be rejected as surplu-
sage. Nash v. Nash, 16 Ill.79. See also Smith v. Webb, Ib. 105; Dunlap v.
Buckingham, Ib. 109; Turney v. Paw, Ib. 485.]

The common consolidated count in Debt, is as follows: “ For that the said
(defendant) on —— was indebted to the plaintiff in dollars, for [here
state what the debt is for, as in Assumpsit, which see,] which moneys were to
be paid to the plaintiff upon request; whereby, and by reason of the non-
payment thereof, an action hath accrued to the plaintiff to demand and have
from the said (defendant), the sums aforesaid, amounting in all to the sum of
——. Yet the said (defendant) has never paid the same,” &c.

 
PART Iv.] DEBT. 381

Where the contract is by a specialty, the execution of the
deed is put in issue by the plea of non est factum, which, as
it may also be made in an action of covenant, will hereafter
be considered under the title of Deed. The liability of an
heir, on the bond of his ancestor, will be treated under the
title of Heir.

 

On a promissory note, between the original parties, the declaration is as
follows: “For that the said (defendant) on ,made his promissory note
and delivered the same to the plaintiff, and thereby, for value received,
promised the plaintiff to pay him the sum of —— in months, (as the
case may be,) and, by reason of the non-payment thereof, an action hath
accrued to the plaintiff, to demand and have from the said (defendant) the
sum aforesaid. Yet,” &c.

In debt on a judgment, the count is thus: “For that the plaintiff, at the
Court [here describe the Court by its proper title] begun and holden at
within and for the [county or district] of ,on [here state the day
appoinied by law for holding the term] by the consideration of the Justices of
said Court, recovered judgment against the said (defendant) for the sum of
debt or damage, and the further sum of for costs of suit, as by the
record thereof in the same Court remaining appears; which said judgment
remains in full force, unreversed and unsatisfied; whereby an action has
accrued to the plaintiff, to demand and have from the said (defendant) the
sums aforesaid, amounting to the sum of Yet the said (defendant) has
not paid the same, (nor any part thereof,)” &c.

The following is the usual count in debt upon a bond: “ For that the said
(defendant) on by his writing obligatory of that date, which the plain-
tiff here produces in Court, bound and acknowledged himself indebted to
the plaintiff in the sum of to be paid to the plaintiff on demand. Yet
the said (defendant) has not paid the same,” &c.

In debt for rent, founded upon the defendant’s occupancy, and not upon
the indenture, the count is as follows: “For that the plaintiff, on —— de-
mised to the said (defendant) a certain messuage and premises, with the
appurtenances, situate in , to have and to hold the same to the said
(defendant) for the term of —— thence next ensuing, yielding and paying
therefor, to the plaintiff, during the said term, the yearly rent of , to be
paid [here insert the times of payment} by equal portions; by virtue of which
demise the said (defendant) entered into said demised premises, and was
possessed thereof thenceforth and until the day of ——, when a large
sum of money, to wit, the sum of of the rent aforesaid, accruing up to
the day last aforesaid, was due and payable from said (defendant) to the
plaintiff; whereby an action has accrued to the plaintiff to demand and have
from the said (defendant) the said sum last mentioned. Yet the said (de-
Jfendant) has never paid’the same,” &c.

 

 

 

 

 

 

 

 

 

 

 

 

 

 
332 LAW OF EVIDENCE. [PART Iv.

§ 280. When this action is brought upon a parol contract,
or for an escape, or for a penalty given by statute, the gen-
eral issue is nil debet; under which, as it is a traverse of the
plaintiff’s right to recover, he must prove every material fact
alleged in the declaration. And, on the other hand, as the
defendant alleges that he does not owe, this plea enables him
to give in evidence any matters tending to deny the exist-
ence of any debt, such as a release, satisfaction, arbitrament,
non-delivery of goods, and the like. And, generally, when
the action is upon a matter of fact, though the fact be proved
by a specialty, or by a record, the plea of nil debet is good,
and will open the whole declaration, as well as admit the
defendant to make any defence, showing that he is not in-
debted. But if the specialty is itself the foundation of the
action, though extrinsic facts be mixed with it, the rule is
otherwise. Thus, in debt for rent, due by indenture, the action
is founded on the fact of occupation of the premises, and
pernancy of the profits by the defendant, the lease being
alleged only by way of inducement; and, therefore, the plea
of nil debet puts the plaintiff upon proof of the whole decla-
ration; and, under it, the defendant may give in evidence a
release; payment; or, that possession was withheld by the
lessor ; or, that he was subsequently ousted or evicted by the
lessor, or by a stranger having a better title. Ifthe ouster or
eviction was by the lessor, and was of only a part of the
premises, it will bar the whole action, for, being a wrong-
doer, no apportionment will be made in his favor; but if it
were by a stranger, the rent will be apportioned.’ So, in debt
for an escape, upon a devastavit, the judgment is but induce-
ment, the action being founded on the fact of the escape, or
of the waste

 

1 Steph. on Plead. 177; 1 Chitty on Plead. 423; Tyndal v. Hutchinson,
8 Lev. 170; Bullis v. Giddens, 8 Johns. 83; Minton v. Woodworth, 11
Johns. 474; Jansen v. Ostranger, 1 Cowen, 670; Stilson v. Tobey, 2 Mass.
521; 2 Saund. 187 a, note (2), by Williams. See, as to -apportion-
ment, Woodfall’s Landlord & Tenant, p. 301, (5th edit.) by Wollaston;
Vaughan v. Blanchard, 1 Yeates, 175; Gilb. Evid. 288, 284; Bull. N. P.
197; Bredon v. Harman, 1 Stra. 701; [Matthews v. Redwine, 23 Miss.
PART IV.] DEBT. 333

§ 281. In debt for rent, founded upon a demise by deed, if

the defendant pleads nil habuit in tenementis, the plaintiff
' may estop him by replying the deed; but if, instead of so
doing, he takes issue upon the plea, the deed is no estoppel,
and the Jury may find according to the truth, upon the
whole matter. And if he pleads nil debet, he cannot, under
this issue, give in evidence that the plaintiff had no interest
in the demised premises; because, if he had pleaded it spe-
cially, the plaintiff might have replied the deed, by way of
estoppel ; of which right he shall not be deprived, but by his
own laches! Nor, can the defendant, under this plea, give
evidence of any disbursement for necessary repairs, where
the plaintiff is bound to repair; for his remedy is by an
action of covenant? But if it be part of the covenant that
the tenant may make repairs out of the rent, the evidence is
admissible.

§ 281 a. In debt upon a parol contract, also, the suit being
founded upon the facts of the transaction, whether the
contract be express or implied, the plaintiff must allege, and
under the general issue must prove, all the material facts
from which the obligation arises; the proof being generally
the same as in an assumpsit for the like causes of action.*
And the defendant, as before stated, may be admitted to any
defence, which shows that the plaintiff never had a cause of
action ; such as infancy, mental incapacity, coverture, duress,
want of illegality of consideration, release, or payment before
breach, term of credit unexpired,’ or the like; and may also

 

233; King v. Ramsay, 13 Ill. 619. To an action on a covenant not to do
a certain thing, the condition being set out and the breaches assigned in the
declaration, nil debet is not a good plea. Hogencamp v. Ackerman, 4 Zabr.
(N. J.) 183. Nil debet cannot be pleaded to an action on the judgment of a
Court of another State. Buchanan v. Port, 5 Ind. (Porter,) 264; Henz-
ley v. Force, 7 Eng. 756.]

1 Bull. N. P. 170; Trevian v. Lawrence, 1 Salk. 277.

2 Bull. N. P. 176, 177; Taylor v. Beal, Cro. El. 222.

3 Clayton v. Kynaston, 1 Ld. Raym. 420, per Holt, C. J.

4 See supra, tit. AssumpsrT, § 112-129.

5 Broomfield v. Smith, 1 M. & W. 542.
334 LAW OF EVIDENCE. [PART Iv.

show many matters which go in discharge of his liability
which once existed, such as payment, accord and satisfac-
tion, release, and other matters already noticed in the action *
of assumpsit.:

§ 282. The Statute of Limitations cannot be given in
evidence under the plea of nil debet; it must be specially
pleaded. Nor cana former recovery by another person be
given in evidence under this plea, when pleaded to an action
of debt for a penalty given by statute; for if it could be so
shown, the plaintiff might be deprived of the opportunity of
pleading nul tiel record, or of proving that the recovery was
by fraud2 But in debt upon a parol contract, under the
plea of nit debet, the defendant may take advantage of the
Statute of Frauds; for the plaintiff, under that issue, is
bound to prove his case by such evidence as the statute
requires.®

§ 283. In debt for a penalty given by statute, and in every
other case, where a criminal omission of duty is charged,
whether official or otherwise, we have already seen that the
allegation, though negative in its character, must be proved
by the plaintiff Butif the action is founded on the doing
of an act without being duly licensed or qualified, the bur-
den of proving the license or qualification lies on the defend-
ant, because it is a matter lying peculiarly within his own
knowledge.

§ 284. The plaintiff, in such action, besides proving the
corpus delicti as alleged, must also show that the action has
been regularly commenced within the limited time, if the

 

1 See supra, §§ 135, 136 u, 280.

2 Bull. N. P.197; Bredon v. Harman, 1 Stra. 701.

3 Fricker v. Thomlinson, 1 M. & G. 772. Soin assumpsit, the same de-
fence is open under the general issue. Buttemere v. Hayes, 5 M. & W. 456;
Eastwood v. Kenyon, 11 Ad. & El. 438.

4 Ante, Vol. 1, §§ 78, 80.

5 Anite, Vol. 1, § 79.
PART Iv.] DEBT. 335

statute has made this essential to his right to recover; and
in the right county, if any is designated by law. If the
time of the commencement of the action does not appear on
the record, it may be shown by the writ, or aliwnde, by any
other competent evidence. And if part of the penalty is
given to the town or parish, where the offence was commit-
ted, or to the poor thereof, it must be proved that the offence
was committed in that town or parish?

§ 285. The defendant, in a penal action, may, under the
general issue, avail himself of any statutory provision ex-
empting him from the penalty, whether it be contained in
the same statute on which the action is founded, or in any
other. He may also, under this issue, take advantage of
any variance between the allegation and the proof on the
part of the plaintiff; for, as we have already seen, the plain-
tiff is held to the same strictness of proof in a penal action,
or in an action founded in tort, where a contractias set forth,
as in an action upon the contract itself.®

§ 286. In an action of debt for bribery at an election, the
material] fact is, that the party was bribed to vote; and the
plaintiff must therefore prove some bribe, promise, or agree-
ment, according to the statute, previous to voting. But
though several candidates are mentioned in the declaration,
it will not be necessary to prove that the party was bribed
to vote for more than one; nor, that they were all candi-
dates ; nor will it be necessary to prove that the party bribed
was a voter, the offer of a bribe by the defendant being con-

 

1 Bull. N. P. 194,195. And see, as to the place where the offence was
committed, Scott v. Brest, 2 T. R. 238; Butterfield v. Windle, 4 East, 385 ;
Pope v. Davies, 2 Campb. 266; Scurry v. Freeman, 3 B. & P. 331; Pearson
v. McGowran, 3 B. & C. 700.

2 Johnson v. Smith, 2 Burr. 950; Granger v. George, 5 B. & C. 149.

3 Evans v. Stephens, 4 T. R. 226; Frederick v. Lookup, 4 Burr. 2018.

4 Rex v. St. George, 3 Campb. 222.

5 Ante, Vol. 1, §§ 58, 65; Parish v. Burwood, 5 Esp. 33; Everett v. Tin-
dal, Id. 169; Partridge v. Coates, 1 C. & P. 534; Ry. & M. 153, S. C.
336 LAW OF EVIDENCE. [PART IV.

clusive evidence, against him, of that fact. A wager with
the voter, by a person who is not one, that he will not vote
for a particular candidate, is an offer or agreement to bribe ;
and in any case is competent evidence for the plaintiff, the
intent being for the consideration of the Jury.?

§ 287. The defendant in such action, may, under the
general issue, show that the money was a mere loan; but
though a note be given, the question whether it was a loan
or a gift will still be for the Jury2 It is no defence that the
party did not vote as he was requested; nor, that he never
intended so to do;* nor, that the party corrupted had no
right to vote, if he claimed such right, and the party offering
the bribe thought he had such right.

®

§ 288. In debt for an escape, the plaintiff must prove, (1.)
the judgment by a copy of record; (2.) the issuing and
delivery of sthe writ of execution to the officer; (3.) the
arrest of the debtor; and (4.) the escape. The process may
be proved by its production, or, if it has been returned, by a
copy. If the defendant has made the return, this is con-
clusive evidence against him, both of the delivery of the
precept to him, and of the facts stated in the return. If the
process is not returned, after proof of notice to the defendant
to produce it, secondary evidence of it is admissible® The
escape, if voluntary, may be proved by the party escaping ;
for though the whole amount of the debt may be recovered

 

1 Combe v. Pitt, 3 Burr. 1586 ; Rigg v. Curgenven, 2 Wils. 395.

2 Allen v. Hearn, 1 T. R. 56, 60; Anon. Lofft, R. 552; United States v.
Worrall, 2 Dall. 384. See Commonwealth v. Chapman, 1 Virg. Cas. 138.
Whether an agreement to vote for each other’s candidates for different. of-
fices, amounts to bribery, guere; and see Commonwealth v. Callaghan, 2
Virg. Cas. 460.

3 Sulston v. Norton, 1 W. BI. 317, 318.

4 Ib.; 3 Burr. 1235, 8. C.; Henslow v. Faucet, 3 Ad. & El. 51; Harding
v. Stokes, 2M. & W. 233.

5 Lilly v. Corne, 1 Selw. N. P. 650, note.

6 Cook v. Round, 1 M. & Rob. 512.
PART IV.| DEBT. 337

against the sheriff, yet this will be no defence for the debtor
in an action by the creditor against him.!

§ 298. Where breaches of covenant are assigned on the
record, the plaintiff should be prepared to prove the breaches
as assigned or suggested, and the amount of damages.2_ And
if the condition of the bond declared on is for the perform-
ance of the covenants in some other deed, he must prove the
execution of that deed also, as well as the breaches alleged.®
If the condition of the bond is not set out in the pleadings,
but is only suggested on the record after a judgment on
demurrer, the plaintiff,in proving his damages, must produce
the bond, and prove its identity with the bond declared on;
but of this fact, slight evidence, it seems, will ordinarily
suffice.

§ 290. The plea of solvit ad diem, to an action of debt on
a bond, payable on a certain day, will be supported by evi-
dence of payment before the day; for if the money were
paid beforé the day, the obligee held it in trust for the
obligor until the day, and then it became his own But
if the bond was payable on or before a certain day, the pay-
ment before the day may be so pleaded and proved.6 This
plea may be supported by the lapse of twenty years, without
any payment of interest on the bond within that period.
But as the payment of any.interest after the day will falsify
this plea,’ the plaintiff, where interest or part of the principal
has been so paid, should plead. solvit post diem; in which

 

1 Bull. N. P. 67; Hunter v. King, 4 B. & Ald. 210, per Abbott, C. J.;
Ante, Vol. 1, § 404.

2 2 Saund. 187 a, note (2); 2 Phil. Evid. 169.

3 2 Phil. Evid. 169.

4 Hodgkinson v. Marsden, 2 Campb. 121.

5 Tryon v. Carter, 7 Mod. 231; 2 Stra. 994, S. C.; Dyke v. Sweeting,
Willes, 585. If one only, of several joint and several obligors, is sued, he
may give evidence of any payment made by his co-obligors. Mitchell v.
Gibbes, 2 Bay, R. 475.

6 2 Saund. 48 b. :

7 Moreland v. Bennett, 1 Stra. 652; Denham ». Crowell, Coxe, R. 467.

VOL. II. 29
338 LAW OF EVIDENCE. [PART Iv.

case the lapse of twenty years since the last payment, will,
in the absence of opposing proof, warrant the Jury in finding
for the defendant. This presumption of payment, arising
from the lapse of twenty years, is not conclusive; and, on
the other hand, the Jury may infer the fact of payment from
the lapse of a shorter period, with corroborating circum-
stances.”

§ 291. This presumption, arising from lapse of time, may
be repelled by evidence of the defendant’s recent admission
of the debt or duty; such as the payment of interest, and
the like.2 But an indorsement of part payment, made on the
bond by the obligee, is not alone evidence of that fact; the
indorsement must be proved to have been made at a time
when the presumption of payment could not have arisen, and
when, therefore, the indorsement was contrary to the interest
of the obligee.* This presumption may also be repelled by
evidence of other circumstanees, such as the plaintiff’s ab-
sence abroad, and the like, explanatory of his neglect to de-
mand his money.®

§ 291 a. In debt on a judgment, it has been held, that satis-

 

1 2 Saund. 48 0; Bull. N. P. 174; Moreland v. Bennett, 1 Stra. 652; 2
Steph. N. P. 1259. The plea of solvit post diem was bad at Common Law,
but was permitted by Stat. 4 Ann. c. 16, § 12.

2 Oswald v. Leigh, 1 T. R. 271; Colsell v. Budd, 1 Campb. 27. See also
4 Burr. 1963. ;

31T. BR. 271.

4 See ante, Vol. 1, §§ 121, 122. See also Roseboom v. Billington, 17
Johns. 182; Rose v. Bryant, 2 Campb. 321. The creditor’s indorsement
alone, is now rendered insufficient, by Stat. 9 Geo. 4, c. 14, and by the stat-
utes of several of the United States. See Massachusetts, Rev. Stat. ch. 120,
§ 17; Maine, Rev. Stat. ch. 146, § 23.

5 Newman v. Newman, 1 Stark. R. 101; Willaume v. Gorges, 1 Campb.
317. See Best on Presumptions, p. 187-189. The whole subject of Pre-
sumptive Evidence has been treated with much ability and clearness, by Mr.
Best, in his Treatise on Presumptions of Law and Fact. The lapse of
twenty years is now made a bar, by Stat. 8 & 4 W. 4, c. 42. See also
Massachusetts, Rev. Stat. ch. 120, § 7; Maine, Rev. Stat. ch. 146,
§ 11.

.
PART IV.] DEBT. * 339

faction of the judgment may be proved by parol, even though
the payment was of a less sum than the whole amount due,
provided it was actually received and accepted in full satis-
faction of the judgment.! And if the judgment were against
the debtor by his family name only, and in the action of debt
upon it he is sued by both his christian and surname, the
plaintiff may prove the identity of the person by parol.?

§ 292. The plea of non est factum, to an action of debt
on bond, puts in issue only the execution of the instrument
declared on, and admits every other allegation. Therefore
the defendant, under this issue, cannot give in evidence,
as a defence, anything arising under the condition of the
bond ;? nor can he show that the bond was not taken con-
formably to the requisitions of a statute. And if the action
is against one obligor alone, as jointly and severally bound,
the plaintiff cannot, under this plea, give in evidence a joint
bond of the defendant and the other person mentioned,
though it agrees in date and amount with the bond described
in the declaration So, if the declaration is against one
as principal and the other as surety, and the evidence is

 

1 Tarver v. Rankin, 3 Kelley, 210. And see Sewall v. Sparrow, 16 Mass.
24; 9 Johns, 221; 7 Wand, 301. [Under a plea of nil debet, to an action
upon a judgment recovered in another State, payment may be proved, and a
receipt signed by the plaintiff, acknowledging payment, though it be not un-
der seal, is admissible as prima facie evidence of payment. Clark v. Mann,
33 Maine, 268.. Mil debet cannot be pleaded to an action on the judgment
of a Court of another State. Buchanan v. Port, 5 Ind. (Porter,) 264; Hen-
sley v. Force, 7 Eng. 756.]

2 Root v. Fellowes, 6 Cush. 29. [See also Barry v. Carothers, 6 Rich,
331; Ducommun v. Hysinger, 14 Ill. 249. And where a judgment was ob-
tained in one State against one J. P. M. and an action on said judgment was
brought in another State against one J. P. M. the identity of the defendant
will be presumed. Thompson v. Manrow, 1 Cal. 428.]

3 Rice v. Thompson, 2 Bailey, R. 339. [The plea of non est factum to an
action of debt on a note, puts in issue only the execution of the note ; fraud,
covin, or illegality of consideration, cannot be proved under it. Chambers
v. Games, 2 Greene, (Iowa,) 320.]

4 Commissioners v. Hanion, 1 Nott & McC. 554.

5 The Postmaster-General v. Ridgway, Gilpin, R. 135.
340 : LAW OF EVIDENCE. [PART Iv.

a bond given by the two as sureties only, it is a variance,
equally fatal.

 

1 Bean v. Parker, 17 Mass. 605. [An instrument by which three persons
bound themselves to pay a sum of money, and which purported to be under
their hands and seals, was signed by one of the parties without a seal, and it
was held, upon demurrer, that one action of debt might be brought against all
the parties. Rankin v. Roler, 8 Gratt. 63.] |
* PART Iv.] DEED. 341

DEED.

§ 293. Wuen a deed or specialty is the foundation of the
action, whether it be an action of covenant or of debt, and
the defendant would deny the genuineness or legal formality
of execution of the instrument, this fact is put in issue by
the plea of non est factum. Under this plea, the plaintiff
need not prove the other averments in his declaration.

§ 294. The burden of proof of the formal execution of a
deed, whether it is put in issue by a special plea, or is prop-
erly controverted under any other issue, is upon the party
claiming under it. This proof consists in producing the
deed, removing any suspicions arising from alterations made
in it, and showing that it was signed, sealed, and delivered
by the obligor; and where any particular formalities are
required by statute, as essential to its validity, such as a’
stamp, or the like, the party must show that these have
been complied. with.

§ 295. The subject of the production of deeds, and of the
nature and effect of alterations in them, has been treated in
the preceding volume. The cases in which the evidence of
the subscribing witnesses is dispensed with, have also been
considered.? In the proof of signing and sealing, it is not
necessary that the witnesses should have seen this actually
done; it is sufficient if the party showed it to them as his

 

1 Chitty on Pl. 424, 428; Kane v. Sanger, 14 Johns. 89; Gardiner v. Gar-
diner, 10 Johns. 47; The People v. Rowland, 5 Barb. 8. C. R. 449. As to
the proof of a lost deed, see ante, Vol. 1, § 558, note.

2 Ante, Vol. 1, §§ 144, 559-563, 564-568.

3 Ante, Vol. 1, § 569-575. As to the proof of the formal execution of
deeds, see 4 Cruise’s Dig. tit. 32, ch. 2, Greenleaf’s notes, [2d edition, 1856.]

29 *
e
342 LAW OF EVIDENCE. [PART IV.

hand and seal, and requested them to subscribe the instru-
ment as witnesses! So, where the witness was requested
to be present at the execution of the writings, and saw the
money paid, and proved the handwriting of the obligor, but
did not see him sign, seal or deliver the instrument, this was
held sufficient proof, to admit the instrument to go to the
Jury.2 If the attesting witness has no recollection of the
facts, but recognizes his own signature as genuine, and from
this, and other circumstances, which he states to the Jury,
has no doubt that he witnessed the execution of the instru-
ment, this also, uncontradicted, has been held sufficient.®
And if the witness recollects seeing the signature only, but
the attestation-clause is in the usual form, the Jury will be
advised, in the absence of controlling circumstances, also to
find the sealing and delivery. Indeed, if there is any evi-
dence, however slight, tending to form the formal execution
of the instrument, it is held sufficient to entitle it to go to
the Jury.’ If the signature of the obligor’s name is made by

 

1 Munns v. Dupont, 3 Wash. 42; Ledgard v. Thompson, 11 M. & W. 41;
Infra, tit. WILLS, § 676.

2 Lesher v. Levan, 2 Dall. 96.

8 Pigott v. Holloway, 1 Binn. 436. See also, Dewey v. Dewey, 1 Met.
349; Quimby v. Buzzell, 4 Shepl. 470; New Haven Co. Bank v. Mitchell,
15 Conn. R. 206; Ante, Vol. 1, § 572; Pearson v. Wightman, 1 Const. Rep.
344; Denn v. Mason, 1 Coxe, R. 10; Currie v. Donald, 2 Wash. 58; Rus-
sell v. Coffin, 8 Pick. 148.

4 Burling v. Paterson, 9 C. & P. 570; Curtis v. Hall, 1 South. 148; Long
v. Ramsay, 1 8. & R. 72.

5 Berks. Turnp. Co. v. Myers, 6 8. & R. 12; Sigfried ». Levan, Id. 308;
Scott v. Galloway, 11 S. & R. 847; Churchill v. Speight, 2 Hayw. 338. In
New Hampshire, (Rev. St. ch. 130, § 3) ; Connecticut, (Rev. St. 1888, p. 890;
Coit v. Starkweather, 8 Conn. R. 293); Ohio, (8 Ohio R. 89, Walk. Introd.
354); Vermont, (Rev. St. 1839, ch. 60, § 4); Georgia, (Prince’s Dig. p. 160,
§ 6); Florida, (Thomps. Dig. p.177) ; Michigan, (Rev. St. 1846, ch. 65, § 8);
and Arkansas, (Rev. St. 1837, ch. 81, § 12); two witnesses are required to
the validity of a deed of conveyance of lands. In Indiana, (Rev. St. 1838,
ch. 44, § 7); New Jersey, (Elmer’s Dig. p. 88,§12); Illinois, (Rev. St. 1833,
p- 131, § 9); and in Alabama, (Aikin’s Dig. p. 88,) the deed must be either
acknowledged before a magistrate, or be proved by one or more of the at-
testing witnesses, before it is admissible in evidence. But in the latter State,
the statute is not considered as excluding the proof by evidence aliunde.
PART Iv.] DEED. 343

a stranger, in his presence and at his request, it is a sufficient
signing.

§ 296. In regard to sealing, where there are several obli-
gors, or grantors, it is sufficient if there be several impres-
sions, though there be but one piece of wax.? And in the
sale of lands by a committee of a corporation, it is sufficient
if the deed have but one seal, if it be signed by all the mem-
bers of the committee? If the deed bears on its face a decla-
ration that it was signed and sealed, and there is a seal upon
it, proof of the signature is evidence to be left to a Jury
that the party sealed and delivered it, even though the wit-
ness does not recollect whether or not it had a seal, at the
time of attestation. And if the party, on being inquired of,

 

Robertson v. Kennedy, 1 Stew. 245. See further, as to witnesses, 4 Cruise’s
Dig. tit. 32, ch. 2, § 77, note, (Greenl. ed.) [2d ed. 1856.] Whether a deed,
invalid to pass the estate, for want of witnesses, can be read to support an
action of covenant, on proof of its execution at Common Law, quere; and
see French v. French, 3 N. Hamp. R. 234; Pritchard v. Brown, 4 N. Hamp.
BR. 397; Merwin v. Camp, 3 Conn. R. 35, 41.

1 Rex v. Longnor, 1 Nev. & Mann. 576. So, the party’s mark is a sufficient
signature. Pearcy v. Dicker, 13 Jur.997; [Pierce v. Hakes, 23 Penn. State
R. (11 Harris,) 231.]

2 Perk. § 134. It has also been held, that many obligors may adopt one
seal. Hollisv. Pond, 7 Humph. 222. See, as to seals, 4 Cruise’s Dig. tit. 32,
ch. 2, § 54, note, (Greenl. ed.) [2d ed. 1856.] In Kentucky, obligatory writ-
ings without seal are placed on the footing of specialties, by Stat. 1812,
ch. 375, § 8; Hughes v. Parks, 4 Bibb, R. 60; Handley v. Rankin, 4 Monr.
556. [And a seal by a wafer or other tenacious substance, upon which an
impression is or may be made, is a valid seal toa deed. Tasker v. Bartlett,
5 Cush. 359. A quitclaim deed from two grantors, signed and sealed by
each of them, and signed by their wives with one seal against both signa-
tures, and concluding after the clause of release of dower: “In witness
whereof, we the grantors have hereunto set our hands and seals,” is sufficient
to bar the dower of the wives. Ib.]

3 Decker v. Freeman, 3 Greenl. 338. So, if a bond be executed by a
private agent of several obligors, one seal is sufficient. Martin ». Dortch,
1 Stew. 479.

4 Talbot v. Hodson, 7 Taunt. 251; 2 Marsh. 527, 8. C.; Ball v. Taylor,
1C. & P.417. In some modern cases it is held, that proof of the signature
alone is sufficient proof of the seal, though there be no mention of the seal in
344 LAW OF EVIDENCE. [PART Iv.

acknowledge his signature without objection, this also is
sufficient though it were signed without his authority?

§ 297. The delivery of a deed is complete, when the gran-
tor or obligor has parted with his dominion over it, with
intent that it shall pass to the grantee or obligee; provided
the latter assents to it, either by himself or his agent. It fol-
lows, therefore, that no form of words is necessary, if the act
is done; and that the delivery may be complete, without the
presence of the other party, or any knowledge of the fact by
him, at the time, if it be made to his previously constituted
agent, or if, being made to a stranger, the transaction is sub-
sequently ratified? The receipt of the purchase-money, or

 

the body of the instrument: Merritt v. Cornell, 5 N. Y. Leg. Obs. p. 300;
Taylor v. Glaser, 2 S. & R. 504; Sicard v. Davis, 6 Pet. 137; Lesher v. Le-
van, 2 Dall. 96.

1 Byers v. McClanahan, 6 Gill & J. 250.

2 Hill v. Scales, 7 Yerg. 410. In several of the American States, south
of New York, a scroll, made with a pen, denoting the place of a seal, is
held a sufficient sealing. 4 Kent, Comm. 453; M’Dill v. M’Dill, 1 Dall. 63;
Long v. Ramsay, 1 S. & R. 72; Taylor v. Glaser, 2 8S. & R. 504. But in
some States, it is necessary that the instrument should in such cases contain
some expression, showing an intent to give it the effect of a sealed instru-
ment. Baird v. Blaigrove, 1 Wash. 170; Austen v. Whitlock, 1 Munf. 487;
Anderson v. Bullock, 4 Munf. 442; or, at least, that the obligor acknowl-
edged it as his seal. United States v. Coffin, Bee, R. 140. In New Jersey,
the scroll is restricted to money bonds. Hopewell v. Amwell, 1 Halst. 169.
See, also, Newbold v. Lamb, 2 South.449. But it seems that such an instru-
ment, in States where the Common-Law rule prevails, would still be regarded
only as a simple contract. Adam v. Kerr, 1 B. & P.360; Warren v. Lynch,
5 Johns. 239.

3 Porter v. Cole, 4 Greenl. 25, 24, per Mellen, C. J.; Ante, Vol. 1, § 568,
note (8); 4 Cruise’s Dig. tit. 22, ch. 2, §§ 46, 64, notes, (Greenleaf’s ed.)
[2d ed. 1856]; Mills ». Gore, 20 Pick. 28, 36; Hatch v. Hatch, 9 Mass.
307; Maynard v. Maynard, 10 Mass. 456; Harrison v. Phillips’ Academy,
12 Mass. 456; Chapel v. Bull, 17 Mass. 213, 220; Woodman v. Coolbroth,
7 Green]. 181; Goodrich v. Walker, 1 Johns. Cas. 256; Barnes v. Hatch,
8 N. Hamp. R. 304; Ward v. Lewis, 4 Pick. 588; Goodright v. Gregory,
Lofft, R. 339. Though the grantor die before the deed reaches the hands of
the grantee, it is stilla good delivery. Wheelwright v. Wheelwright, 2 Mass.
447, And it is not necessary that the delivery be made to an agent of the
PART IV.] DEED. 345

bringing an action to recover it, is evidence of the delivery
of the deed So, where the obligor, after signing and seal-
ing a bond, held it out to the obligee, saying “ here is your
bond; what shall I do with it?” — this has been held a suf-
ficient delivery, though it never came to the actual possession
of the obligee2 So, if the parties meet, read, sign, and ac-
knowledge the deed before the proper officer, this has been
held sufficient evidence of delivery, though the deed remained
afterwards in the possession of the grantor Putting the
deed in the post-office, addressed to the grantee, is also held
sufficient If the effect of the instrument is beneficial to
the party to whom it is made, as, for example, if it be an
absolute conveyance of land in fee-simple, or an assignment
to pay a debt, his assent to it will be presumed.> The pos-
session of a deed by the grantee or obligee, is, in the absence
of opposing circumstances, primé facie evidence of delivery.®
So, also, is the registration of a deed, by the grantor, if it be

 

grantee or obligee. Doe v. Knight, 5 B. & C. 671. It may remain in the
grantor’s‘own custody, as bailee. Id.; Scrugham v. Wood, 15 Wend. 545;
Hall v. Palmer, 8 Jur. 459; Hope v. Harman, 11 Jur. 1097. See further,
Verplanck v. Sterry, 12 Johns. 536; Ruggles v. Lawson, 13 Johns. 285; ~
Gardner v. Collins, 3 Mason, R. 398; Harris v. Saunders, 2 Strobh. Eq.
370. [If the grantor deliver a deed to a third person, to be by him deliv-
ered to the grantee after the death of the grantor, it becomes a good delivery |
upon the happening of the contingency, and relates back so as to devest the!
title of the grantor, by relation, from the first delivery. Foster v. Mans-
field, 3 Met. 412; O’Kelly v. O'Kelly, 8 Ib. 436. And the delivery may be
made as well after.the deed has been recorded as before it was put on
record. . Parker v. Hill, Ib. 447.]

1 Porter v. Cole, 4 Greenl. 20. :

2 Folly v. Vantuyl, 4 Halst. 153. See, also, Byers v. McClanahan, 6 G.
& J. 250.

3 Scrugham v. Wood, 15 Wend. 545.

4 McKinney v. Rhoades, 5 Watts, 343.

5 Camp v. Camp, 5 Conn. R. 291; Jackson v. Bodle, 20 Johns. 184;
Halsey v. Whitney, 4 Mason, R. 206.

6 Mallory v. Aspinwall, 2 Day, R. 280; Clarke v. Ray,1 H. & J. 323;
Ward v. Lewis, 4 Pick. 518; Union Bank v. Ridgley, 1 H. & Gill. 324;
Hare v. Horton, 2 B. & Ad. 715; Maynard v. Maynard, 10 Mass. 456, 458 ;
Den v. Fairlee, 1 New Jersey, 279; [Chandler v. Temple, 4 Cush. 285;
Bulkley v. Buffington, 5 McLean, 457.]
846 LAW OF EVIDENCE. [PART Iv.

done for the use of the grantee! And where the instrument
was executed in the presence of a witness, who signed his
name to the attestation-clause, which was in the usual for-
mula of “signed, sealed, and delivered,” but the deed had
never been out of the actual possession of the grantor; it
has been held, that in the absence of opposing circumstances,
the Jury might properly find that it was delivered.” Anda
deed duly executed and acknowledged will be presumed to
have been delivered on the day of its date, unless the con-
trary is proved ; the burden of proof being on the party alleg-
ing a delivery on another day.

§ 298. If the instrument is formally executed in a foreign
country, and the execution is authenticated by a notary-public,
this is sufficient proof to entitle it to be read* But if the
authentication was before the mayor of a foreign town, it
is not received without some evidence of his holding that
office.5

§ 299. Where the instrument is required by law to be ac-
knowledged and registered, or to be examined and approved
by a Judge or other public officer, as is the case of some
official bonds, such acknowledgment, or other official act,
duly authenticated, is in some Courts considered as primd

 

1 Hedge v. Drew, 12 Pick. 141; Chess v. Chess, 1 Penn. 32. And see
Powers v. Russell, 13 Pick. 69; Elsey v. Metcalf, 1 Denio, R. 323; Com-
mercial Bank v. Reckless, 1 Halst. Ch. R. 430; Ingraham v. Grigg, 13 8. &
M. 22; Rathbun v. Rathbun, 6 Barb. S. C. R. 98.

2 Hope v. Harmann, 11 Jur. 1097. And see Hall v. Bainbridge, 12 Ad.
& El..699, N. S.

8 McConnell v. Brown, Litt, Sel. Cas. 459; Elsey v. Metcalf, 1 Denio,
R. 323.

4 Lord Kinnaird v. Lady Saltoun, 1 Madd. R, 227.

5 Garvey v. Hibbert, 1 Jack. & W. 180. [A registry copy of a deed,
executed in 1792, acknowledged before the ‘‘ mayor of the city of Hudson,”
and recorded in the proper registry of deeds in Massachusetts, in 1802, may
be read in evidence in a suit in Massachusetts, in the absence of anything to
show that the acknowledgment was not properly made before such officer.
Palmer v. Stevens, 2 Gray, 147.]
PART IV.] DEED. 347

facie evidence of all the circumstances necessary to give
validity to the instrument, and of course will entitle it to be
read! But the practice, in this particular, is not sufficiently
uniform to justify the statement of it as a general rule.

§ 300. Under the issue of non est factum, the defendant
may prove that the deed was delivered, and still remains as
an escrow ;* or, he may take advantage of any material
variance between the deed as set forth by the plaintiff, and
the deed produced at the trial;’ or may give any evidence
showing that the deed either (1.) was originally void, or
(2.) was made void by matter subsequent to its execution
and before the time of pleading; for it is to the time of
pleading that the averment relates. Thus, the defendant
may show under this issue that the deed is a forgery; that
it was obtained by fraud; or was executed while he was
insane, or so intoxicated as not to know what he was about;
or, that it was made by a feme covert; or to her, but her
husband disagreed to it; or, that it was delivered to a
stranger for the use of the plaintiff, who refused it; or, that

 

1 See ante, Vol. 1, § 573; Craufurd v. The State, 6 H. & J.234. In the
following States, a deed duly acknowledged, seems admissible in evidence,
without further proof; namely, New York, (see 1 Rev. Stat. p. 759, § 16) ;
New Jersey, (Elmer’s Dig. p. 83, § 12); Pennsylvania, (Purdon’s Dig. 1837,
p- 251, § 5); Virginia, (Rev. Code, 1819, Vol. 1, p. 863, § 6); North Caro-
lina, (Rev. Stat. 1837, Vol. 1, p. 226, § 6); Georgia, (Prince’s Dig. 1837, p.
212, § 10); Alabama, (Aikin’s Dig. 1833, p. 88, § 1) ; Jilinois, (Rev. Stat.
1833, pp. 135, 136, § 17); Mississippi, (Aden & Van Hoesen’s Dig. 1839, p.
297,§1); and Missouri, (Rev. Stat. 1835, p. 123, § 35.) As to the ac-
knowledgment of deeds, see 4 Cruise’s Dig. tit. 32, ch. 2, § 80, note, (Green-
leaf’s ed.) [2d ed. 1856.] In Massachusetts, a registry copy of a deed of
land is not admissible in evidence against the grantee, without notice to him
to produce the original. Commonwealth v. Emery, 2 Gray, 80; Browne v.
Boston, Ib. 494.]

2 Bull. N. P. 172; 1 Chitty, Pl. 424; Stoytes v. Pearson, 4 Esp. 255;
Union Bank of Maryland v. Ridgely, 1 H. & G. 324.

3 1 Chitty, Pl. 268, 269, 316; Ante, Vol. 1, § 69; Howell v. Richards, 11
East, 633; Swallow v. Beaumont, 1 Chitty, R. 518; Horsefall v. Testar, 7
Taunt. 385; Morgan v. Edwards, 6 Taunt. 394; 2 Marsh. 96, 8. C.; Bow-
ditch v. Mawley, 1 Campb. 195; Birch v. Gibbs, 6 M. & S. 115.
348 LAW OF EVIDENCE. [PART Iv.

it was never delivered at all’ Or he may show that since
its execution, it has become void by being materially altered
or cancelled by tearing off the seal. But matters which do
not impeach the execution of the deed, but go to show it
voidable by Common Law, or by Statute, such as usury,
infancy, duress, gaming, or that it was given for ease and
favor, or the like, must be specially pleaded2 And here
it may be observed that under a general plea of non est
factum, the burden of proving the deed lies upon the plain-
tiff; but that under any special plea of matter in avoidance
of the deed, the burden of proving the plea lies upon the
defendant.*

 

1 Bull. N. P. 172; 1 Chitty, Pl. 425; Whelpdale’s case, 5 Co. 119; Pitt
v. Smith, 8 Campb. 83; Dorr v. Munsell, 13 Johns. 480; Van Valkenburg
v. Rouk, 12 Johns. 337; Roberts v. Jackson, 1 Wend. 478; Jackson v. Per-
kins, 2 Wend. 308; Wigglesworth v. Steers, 1 Hen. & Munf. 69; Curtis v.
Hall, 1 South. 361. As to the principles on which Chancery acts in setting
aside deeds on the ground of the intoxication of the grantor, see Nagle v.
Baylor, 8 Dru. & War. 60.

2 Leyfield’s case, 10 Co. 92. The intent with which the cancellation was
made, is a fact to be found by the Jury. Grummer v. Adams, 13 Law
Journal, 40, N. S.

3 1 Chitty, Pl. 425; Harmer v. Wright, 2 Stark. R. 35; Colton v. Good-
ridge, 2 W. Bl. 1108; Bull. N. P. 172.

4 Snell v. Snell, 4 B. & C. 741; Bushell v. Passmore, 6 Mod. 218, per
Holt, C. J.; 5 Com. Dig. Pleader, 2 W. 18. If an indorsement on the back
of a deed has no signature and seal, but is claimed as a defeasance, the
party claiming it as such will be required to prove that it was upon the deed
at the time of its execution. Emerson v. Murray, 4 N. Hamp. 171.
PART Iv.] DURESS. 349

DURESS.

§ 301. By Duress, in its more extended sense, is meant
that degree of severity, either threatened and impending, or
actually inflicted, which is sufficient to overcome the mind
and will of a person of ordinary firmness The Common
Law has divided it into two classes, namely, duress per
minas, and duress of imprisonment. Duress per minas is
restricted to fear of loss of life, or of mayhem, or loss of
limb ; or, in other words, of remediless harm to the person?
If, therefore, duress per minas is pleaded in bar of an action
upon a deed, the plea must state a threat of death, or may-
hem, or loss of limb; and a threat to this specific extent
must be proved. A fear of mere battery, or of destruction
of property, is not, technically, duress, and therefore, is not
pleadable in bar;® but facts of this kind, it is conceived, are

 

1 Non suspicio vel cujuslibet vani vel meticulosi hominis, sed talis qui
cadere possit in virum constantem; talis enim debet esse metus, qui in se
contineat mortis periculum, et corporis cruciatum. Bracton, lib. 2, c. 5,
par. 14.

2 [It would seem that the rule of law in regard to duress per minas is
stated too narrowly in the text. In Robinson v. Gould, 11 Cush. 57, the
Supreme Judicial Court of Massachusetts say that “duress by menaces,
which is deemed sufficient to avoid contracts, includes a threat of imprison-
ment, inducing a reasonable fear of loss of liberty. 2 Rol. Ab. 124; 2
Inst. 482-3; Bac. Ab. Duress, A.; 20 Amer. Jur. 24.”]

31 Bl. Comm. 131. In Louisiana, any threats will invalidate a contract,
if they are “such as would naturally operate on a person of ordinary firm-
ness, and inspire a just fear of great injury to person, reputation, or fortune.”
Civil Code, Louis. Art, 1845. And the age, sex, health, and disposition, and
other circumstances of the party threatened, are taken into consideration.
Id. The contract is equally invalidated by a false report of threats, if it
were made under a belief of their truth; and by threats of injury to the
wife, husband, descendant, or ascendant, of the party contracting. Id. Art.
1846, 1847.. These rules apply to cases where there may be some other
motive for making the contract, besides the threats. But if there is no
other motive or cause, then any threats, even of slight injury, will invalidate

VOL. IL 30
350 LAW OF EVIDENCE. [PART Iv.

admissible in evidence to make out a defence of fraud and
extortion in obtaining the instrument.

§ 302. The plea of Duress of imprisonment is supported
by any evidence, that the party was unlawfully restrained
of his liberty, until he would execute the instrument. If the‘
imprisonment was lawful, that is, if it were by virtue of
legal process, the plea is not supported; unless it appear
that the arrest was upon process sued out maliciously and
without probable cause ; or, that, while the party was under
' lawful arrest, unlawful force, constraint, or severity was
inflicted upon him, by reason of which the instrument was
executed? But in all cases, the duress must affect the party
himself; for if there be two obligors, one of whom executed
the bond by duress, the other cannot take advantage of this
to avoid the bond as to himself.!

 

it. Id. Art.1853. [Nor will a threat to bring an action upon an agreement
to convey land in fee, in consequence of which a less estate in the same
land is conveyed by deed, be such duress as will avoid the deed. Harris v.
Tyson, 24 Penn. State R. 347.]

t See Evans v, Huey, 1 Bay, R. 13; Collins v. Westbury, 2 Bay, R.
211; James v. Roberts, 18 Ohio, 548; Sasportas v. Jennings, 1 Bay, R. 470,
475. In this last case the rule is broadly laid down, that where assumpsit
would lie to recover back the money, had it been paid under restraint of
goods, a promise to pay it, made under the like circumstances, may be
' avoided by a plea of duress.

' 21 Bl. Comm. 136, 137; Hob. 266, 267; 2 Inst. 482; Anon. 1 Lev. 68,
69; Wilcox v. Howland, 23 Pick. 167; Waterman v. Barratt, 4 Harringt.
311; [Neally v. Greenough, 5 Foster, (N. H.) 325.]

3 Anon. Aleyn, 92; Watkins v. Baird, 6 Mass. 506; [Soule v. Bonney,
37 Maine, 128; Breck v. Blanchard, 2 Foster, (N. H.) 303; Taylor v.
Cottress, 16 Ill. 93. Not only is a direct promise void, if made under duress
and an illegal arrest, but so also are admissions thus made of a former
promise, and the Jury cannot inquire whether such admissions were made
because they were true, or because the party making them was under
duress. Tilley v. Damon, 11 Cush. 247.]

4 Huscombe cv. Standing, Cro. Jac. 187; Thompson v. Lockwood, 15
Johns. 256; [Mantel v. Gibbs, 1 Brownlow, 64; Wayne v. Sands, 351,
Shep. Touch. 62; McClintick v. Cummins, 3 McLean, 158; 20 Amer. Jur.
26; Robinson v. Gould, 11 Cush. 57. Sureties upon a recognizance cannot
plead the duress of their principal in discharge of their liability. Plumer
v. People, 16 Ill. 858. But see State v. Bruntley, 27 Ala. 44.]
PART IV.] EJECTMENT, 301

EJECTMENT.

§ 303. Tus, which was originally a personal action of
trespass, is now a mixed action, for the recovery of land and
damages, and is become the principal, and, in some States,
the only action, by which the title to real estate is tried, and
the land recovered. In several of the United States, the
remedy for the recovery of land is by an action frequently
called an ejectment, but in form more nearly resembling the
writ of entry on disseisin, in the nature of an assize But
in all the forms of remedy, as they are now used in practice,
the essential principles are the same, at least so far as the
law of evidence is concerned. The real plaintiff, in every
form, recovers only on the strength of his own title ;? and he
must show that he has the legal interest, and a possessory
title, not barred by the Statute of Limitations.’

§ 304. When the title of the real plaintiff in ejectment is
controverted under the general issue, he must prove, (1.) that
he had the legal estate in the premises, at the time of the
demise laid in the declaration ; (2.) that he also had the right
of entry; and, (3.) that the defendant, or those claiming un-
der him, were in possession of the premises at the time when
the declaration in ejectment was served.*

§ 305. If a privity in estate has subsisted between the par-

 

1 Jackson on Real Actions, 2, 4.

2 Roe v. Harvey, 4 Burr. 2484, 2487; Jackson on Real Actions, p. 5;
Adams on Eject. pp. 32, 285, by Tillinghast ; 1 Chitty on Pl. 173; Williams
v. Ingalls, 21 Pick. 288; Martin v. Strachan, 5 T. R. 108, u.; Goodtitle v.
Baldwin, 11 East, 488, 495; Lane v. Reynard, 2 8. & R. 65; Covert v. Ir-
win, 3S. & R. 288. 7

3 Chitty on Pl. 172; Id. 209, (7th edit.)

4 Adams on Eject. p. 247, by Tillinghast.
802 LAW OF EVIDENCE. [PART IV.

ties, proof of title is ordinarily unnecessary ; for a party is not
permitted to dispute the original title of him by whom he has
been let into the possession... This rule is extended to the
case of a tenant, acquiring the possession by wrong against
the owner, and to one holding over after the expiration of
his lease.2) And when the relation of landlord and tenant is
once established by express act of the parties, it attaches to
all who may succeed to the possession through or under the
tenant, whether immediately or remotely; the succeeding
tenant being as much affected by the acts and admissions of
his predecessor, in regard to the title, as if they were his own?
Even an agreement to purchase the lands, if made deliber-
ately, estops the purchaser from denying the title of the
vendor.t But evidence of an agreement for a lease, if none
was ever executed, is not alone sufficient to establish this
relation, against a tenant already holding adversely. Nor

 

1 Anite, Vol. 1, §§ 24, 25; Adams on Kject. p. 247, by Tillinghast ; Wood
v. Day, 7 Taunt. 646; 1 Moore, 389; Jackson v. Reynolds, 1 Caines, 444;
Jackson v. Whitford, 2 Caines, 215; Jackson v. Vosburg, 7 Johns. 186 ;
Williams v. Annapolis, 6H. & J. 533; Jackson v. Stewart, 6 Johns. 34;
Jackson v. De Walts, 7 Jobns. 157; Jackson v. Hinman, 10 Johns. 292;
Doe v. Edwards, 6 C. & P. 208. The lessee of'a close in severalty, demised
to him by one of several tenants in common, cannot set up an adverse title
in bar of an action by his lessor. Doe v. Mitchell, 1 B. & B. 11; Jackson
v. Creal, 13 Johns. 116.

2 Jackson v. Styles, 1 Cowen, 575; Doe v. Baytup, 3 Ad. & El. 188; 4.N.
& M. 837. So, though the landlord’s title was acquired by wrong. Parry v.
House, Holt’s Cases, 489. Or, was only an equitable title. Doe v. Edwards,
6 C. & P. 208.

* Taylor v. Needham, 2 Taunt. 278; Doe v. Mills, 2 Ad. & El. 17; Doe v.
Lewis, 5 Ad. & El. 577; Jackson v. Davis, 5 Cowen, 123; Jackson v. Har-
sen, 7 Cowen, 323; Jackson v. Scissam, 3 Jobns. 499; Graham v. Moore,
48. & R. 467; Jackson v. Walker, 7 Cowen, 637; Cooper v. Blandy, 4 M.
& Scott, 562; Doe v. Mizen, 2 M. & Rob. 56; Barwick v. Thompson, 7 T.
R. 488. The purchaser at a sheriff’s sale is privy to the debtor’s title, and
is therefore equally estopped with him. Jackson v. Graham, 8 Caines, 188;
Jackson v. Bush, 10 Johns. 223.

4 Whiteside v. Jackson, 1 Wend. 418; Jackson v. Walker, 7 Cowen, 637;
Jackson v. Norris, Id. 717; Hamilton v. Taylor, Litt. Sel. Cas. 444; Doe v.
Burton, 6 Eng. Law & Eq. R. 325.

5 Jackson v. Cooley, 2 Johns. Cas. 223,
PART IV.] EJECTMENT. 353

is the tenant precluded from showing that an agreement to
purchase from the plaintiff was made by him under a mis-
take, or that the title was in himself, or out of the lessor ;?
or, that a lease, which he has taken while in possession, was
unfairly imposed upon him, by misrepresentation and fraud?
The same principle applies to any other act of acknowledg-
-ment, amounting to an admission of tenancy or title? But
the tenant may always show that his landlord’s title has ex-
pired;* or, that he has sold his interest in the premises; ®
or, that it is allenaed from him by judgment and operation
of law.®

§ 306. One of the ordinary methods of establishing a priv-
ity in estate, is by proof of the payment of rent; which is
always primé facie evidence of the title of the landlord, and
is conclusive against the party paying, and all others claim-
ing under and in privity with him.’ And the payment of
rent, after an occupancy of many years, is sufficient evidence,
if unexplained, to show that the occupancy began by permis-
sion of the party to whom it was paid®

§ 307. Where both parties: claim under the same third per-
son, it is primd facie sufficient to prove the derivation of title
from him, without proving his title. So, if either has held
under such third person, as his tenant, and is thereby estop-

 

1 Jackson v. Cuerden, 2 Johns..Cas. 353.

2 Brown v. Dysinger, 1 Rawle, R. 408; Miller v. M’Brier, 14 S. & R.
382; Hamilton v. Marsden, 6 Binn. 45; Jackson v. Ayres, 14 Johns. 224;
Jackson v. Norris, 7 Cowen, 717.

3 Gregory v. Doidge, 3 Bing. 474; 11 Moore, 394, S. C.

4 Neave v. Moss, 1 Bing. 360; 8 Moore, 389, 8. C.; England v. Slade,
4 T. R. 682; Doe v. Whitroe, 1 Dowl. & R.1; Brook v. Briggs, 2 Bing. N.
C. 572.

5 Doe v. Watson, 2 Stark. R. 230.

6 Jackson v. Davis, 5 Cowen, 123, 185; Camp v. Camp, 5 Conn. 291.

7 Doe v. Pegge, 1 T. R. 758, 759, n.; Doe v. Clarke, Peake, Add. Cas,
239; Hall v. Butler, 10 Ad. & El. 204; 2 P. & D. 374,S. C.; Jew v. Wood,
1 Craig. & Phil. 185; 5 Jur. 954. ,

8 Doe v. Wilkinson, 3 B. & C. 413.

30 *
354 LAW OF EVIDENCE. [PART Iv.

ped to deny his title! But the defendant, if not otherwise
estopped, may still set up a title paramount to the common
source, and derive to himself; or a title under an incumbrance
created by the common grantor, prior to the title of the plain-
tiff?

§ 308. The identify of the lands, and the possession of them
by the defendant, may be proved by the payment of rent, or
by the defendant’s admission of his tenancy, or by any other
competent evidence of the fact; it being merely a matter of
fact, provable, like other facts, by parol evidence.’

§ 309. The party claiming as lineal heir, must prove that
the ancestor, from whom he derives title, was the person last
seised of the premises, as his inheritance, and that he is the
heir of such ancestor.t This seisin may, in the first instance,
be proved, by showing that the ancestor was either in actual
possession of the premises, at the time of his death, and
within the period of the Statute of Limitations, or, in the
receipt of rent from the terre-tenant ; possession being prima
facie evidence of a seisin in fee If he claims as collateral
heir, he must show the descent of himself, and the person
last seised, from some common ancestor, together with the
extinction of all those lines of descent which would claim
before him. This is done by proving the marriages, births,
and deaths necessary to complete his title, and the identity
of the persons.®

 

1 Adams on Eject. p. 248, by Tillinghast. But,in the former case, a mere
possessory title, which would be good against a stranger, and may have been
gained by a tortious entry, is not always sufficient. Sparhawk v. Bullard, 1
Met. 95; Oakes v. Marcy, 10 Pick. 195.

2 Wolfe v. Dowell, 13 S. & M. 108.

3 Adams on Eject. p. 248, by Tillinghast; Jackson v. Vosburg, 7 Johns.
186. By the modern rules of practice in England, the possession by the de-
fendant is admitted in the consent-rule. 4 B. & Ald. 196; 2 B.& B. 470.

4 Adams on Eject. p. 253, by Tillinghast; Jackson on Real Actions, p.
157; Co. Litt. 11 6; Jenkins v. Prichard, 2 Wils: 45.

5 Adams on Eject. p. 254, by Tillinghast; Bull. N. P. 102, 108.

6 Ibid.; 2 Bl. Comm. 208, 209; Roe v. Lord, 8 W. Bl. 1099. For the
PART IV.] EJECTMENT. 355

§ 310. Where the plaintiff claims as devisee of a freehold,
he must prove the seisin and death of the devisor, and the
due execution of the will; unless it is thirty years old, in
which case it may be end without further proof; and the
age of the will is to be reckoned from the day of its date
and not from the death of the testator.!

§ 311. The seisin of the ancestor or devisor,? may be
proved by his receipt of rent, or by his actual possession of
the premises; either of which is primd facie evidence of title
in fee ;3 or, by proof of an entry into one of several parcels
of the land, if they were all in the same county, and there
was no adverse possession at the time, for this gives a seisin
of them allt If there was an adverse possession, and the
owner’s right of entry was not barred, his entry, in order to
revest the seisin in himself, should have been an open and
notorious entry into that particular parcel; and in every case
an entry, to revest an estate, must be made with that inten-
tion, sufficiently indicated either by the act, or by words ac-
companying ité

§ 312. The entry, to gain a seisin, needs not be made by
the very person entitled; but may be made by another in his
behalf, even if it be by a stranger, without any precedent
command, or express subsequent agreement. By the Com-
mon Law, the entry of one joint-tenant, tenant in common,
or coparcener, is deemed the entry of all; and the entry of

 

>

proof of pedigree, see Vol. 1, § 103-105, 134; and infra, tit, Herr. See
further, Richards v. Richards, 15 East, 294, note.

1 Adams on Eject. p. 259; Ante, Vol. 1, § 570, n.; Doe v. Wolley,
8 B. & C. 22; McKenire v. Fraser, 9 Ves. 5; Jackson v. Laroway, 3
Johns. Cas. 283, 286; Jackson v. Christman, 4 Wend. 277, 282. For ,
the proof of Wills, see infra, tit. WILL.

2 See infra, § 555.

3 Bull. N. P. 103; Jayne v. Price, 5 Taunt. 326; 1 Marsh. 68, S. C.;
2 Phil. Evid. 282.

4 Co. Lit. 15 a, b, 252 6; 1 Cruise, Dig. tit. 1, §§ 24, 25, (Greenleaf’s
ed.) [2d ed. 1856.]

5 Co. Lit. 245 b; Robison v. Swett, 3 Greenl. 316; Supra, § 23.
806 LAW OF EVIDENCE. [PART Iv.

a guardian tenant for years, tenant by elegit, or younger
brother or sister, inures to the benefit of the ward, lessor, or
other person entitled! So, the possession of the mother
becomes the seisin of her posthumous son.? And it seems
that the heir may acquire an actual seisin, without any entry
by himself, by making a lease for years or at will, if his pos-
session in law is unrebutted by the actual seisin of any other
person?

§ 313. There can be no mesne seisin of ‘a remainder or
reversion expectant on an estate of freehold, while such
remainder or reversion continues in a regular course of de-
scent; for if it be granted over, it vests immediately in the
grantee, making him the new'stock of descent for any sub-
sequent claimant; the exercise of such ownership being
equivalent to the actual seisin of an estate, which is capable
of being reduced to possession by entry. He, therefore, who
claims an estate in remainder or reversion by a descent, must
make himself heir, either to him in whom such estate first
vested by purchase, or to the person to whom it was last
granted by the owner.*

§ 314. Where the plaintiff claims as legatee of a term of
years, he must show the probate of the will, and prove the as-
sent of the executor to the legacy, without which he cannot
take. But allowing the legatee to receive the rents, or apply-
ing them to his use, or any other slight evidence of assent
on the part of the executor, such as, on the part of a tenant,
would amount to an atonement, will be sufficient ; and such
assent once given, is irrevocable. He must also show that
the testator had a chattel and not a freehold interest in the

 

1 Cr Lit. 15 a, 245 b, 258 a; 2 Cruise’s Dig. tit. 18, ch. 1, § 63; Id. ch.
2, § 14, (Greenleaf’s ed.) [2d ed. 1856.]

2 3 Cruise, Dig. tit. 29, ch. 3, § 55-57, (Greenleaf’s ed.) [2d ed. 1856];
Goodtitle v. Newman, 3 Wils. 516.

8 Watkins on Descents, pp. 67, 68, (49,) (50.)

4 Id. pp. 137, 138, 151, (110,) (118.)

5 1 Roper on Legacies, 250, 251.
PART Iv.] ‘ EJECTMENT. 357

premises ; because we have already seen that his possession,
unexplained, will be presumed a seisin in fee. Of this fact,
the lease itself will be the most satisfactory evidence ; but it
may be proved, by any solemn admission of the other party,
as, for example, by his answer as defendant, to a bill in
equity, in which he stated that “he believed that the lessor
was possessed of the leasehold premises in the bill men-
tioned.” !

§ 315. If the plaintiff claims a chattel real as executor or
administrator, he must prove the grant of the letters of ad-
ministration, or the probate of the will, in addition to the
evidence of the testator’s or intestate’s title. And where no
formal record of the grant of letters of administration or
letters testamentary is drawn up, they may be proved by the
book of Acts, or other brief oficial memorial of the fact.? If
the plaintiff claims as guardian, he must in like manner
prove, not only the title of the ward, and his minority at the
time of the demise laid in the declaration, but also the due
execution of the deed or will, appointing him guardian, if
such was the source of his authority; or the due issue of
letters of guardianship, if he was appointed by the tribunal
having jurisdiction of that subject.

§ 316. Where the plaintiff claims as purchaser under a
sheriff’s sale, made by virtue of an execution against the
defendant in ejectment, it is sufficient to show the execution,
and the proceedings under it,* without producing a copy of

 

1 Doe v. Steel, 3 Campb. 115.

2 Bull. N. P. 246; Elden v. Keddel, 8 East, 187; Ante, Vol. 1, § 519;
Adams on Eject. p. 271, by Tillinghast. A Court of Common Law takes
no notice of a will, as a title to personal property, until it has been proved
in the Court having jurisdiction of the probate of wills. Stone v. Forsyth,
2 Doug. 707. An executor may lay a demise before probate of the will.
Roe v. Summersett, 2 W. BI. 694.

3 Adams on Eject. by Tillinghast, p. 275.

4 The sheriff's return is itself conclusive evidence between the parties and
those in privity with them, of all the facts it recites, which relate to his own
doings by virtue of the precept. Bott v. Burnell, 11 Mass. 163; Whitaker
«

358 LAW OF EVIDENCE. [PART Iv.

the record of the judgment itself; for the debtor might have
applied to have the execution set aside, if it had been issued
without a valid-judgment to support it; but not having done
so, it will be presumed, in an action against him, that the
judgment is right. But where the action of ejectment is
against a stranger, no such presumption is made, and the
plaintiff will be required to prove the judgment, as well as
the execution.! In some of the United States, the freehold
estate of a judgment debtor may be taken on execution, in
the nature of an. extent, and set off to the creditor, at an-
appraised value; in which case an actual seisin is vested in
the creditor ; by virtue of which he may maintain a real
action, even against the debtor himself

§ 317. If a joint demise is laid in the declaration, evidence
must be given of a joint interest in the lessors. But if several
demises are laid, the declaration will be supported by proof
of several demises, even by joint-tenants ; for a several demise
severs a joint-tenancy.2 So, if four joint-tenants jointly de-
mise, such of them as give notice to quit, may recover their
several shares, in an ejectment on their several demises.t By
the Common Law, tenants in common cannot recover upon
a joint demise; but must sue separately, each for his share,
in whatever form of real action the remedy is sought But

 

v. Sumner, 7 Pick. 551, 555. Lawrence v. Pond, 17 Mass. 433. Where
the deed of one acting under legal authority is offered in proof, not of title,
but of a collateral fact, the authority needs not to be proved. Bolles v.
Beach, 3 Am. Law Journ. 122, N. 8.

1 Doe v. Murless, 6 M. & S. 110; Hoffman ». Pitt, 5 Esp. R. 22, 23;
Cooper v. Galbraith, 83 Wash. C. C. R. 546. But this point was otherwise
decided, and the judgment was required to be proved, in an ejectment
against the debtor himself, in Doe v. Smith, 1 Holt’s Cas. 589, n.; 2 Stark.
R. 199, n.; Fenwick v. Floyd, 1 H. & Gill, 172.

2 Gore v. Brazier, 3 Mass. 5238; Blood v. Wood, 1 Met. 528, 534.

3 Doe v. Read, 12 East, 57; Doe v. Fenn, 3 Campb. 190; Doe v. Lons-
dale, 12 East, 39.

4 Doe v. Chaplin, 3 Taunt. 120.

5 Co. Litt. 197; Hammond on Parties, p. 251; 1 Chitty on Pl. 14, (7th
edit.) ; Innis v. Crawford, 4 Bibb, 241; Taylor ‘v. Taylor, 3 A. K. Marsh.
18 ; White v. Pickering, 12 S. & R. 435.
PART IV.] EJECTMENT. 359

in some of the United States this rule has been changed by
statute, and in others it has been broken in upon, by a long
course of practice in the Courts, permitting tenants in com-
mon and all others claiming as joint-tenants, or as coparce-
ners, to join or sever in suits for the recovery of their lands.!
If the declaration is for a certain quantity of land, or for a
certain fractional part, and the plaintiff proves title to a part
only of the land, or to a smaller fraction, the declaration is
supported for the quantity or fraction proved, and he may
accordingly recover.2. But whether, if any entirety is de-
manded, the plaintiff may recover an undivided part, is not
uniformly agreed; though the weight of authority is clearly
in favor of his recovery.?

§ 318. If the action is by a joint-tenant, parcener, or tenant
in common, against his companion, the consent-rule, if it is in
the common form, will be sufficient evidence of an ouster ;
but if it is special, to confess lease and entry only, the ouster
must be proved.t Possession alone will not be sufficient
proof of an ouster by one owner, against his companion;
for where both have equal right to the possession, each will
be presumed to hold under his lawful title, till the contrary
appears. An ouster in such case, therefore, must be proved
by acts of an adverse character, such as, claiming the whole
for himself; denying the title of his companion; or refus-
ing to permit him to enter; and the like. A bare perception
of the whole profits does not, of itself, amount to an ouster;

 

1 Maine, Rev. St. ch. 145, § 12; Massachusetts, Rev. St. ch. 101, § 10;
Jackson v. Bradt, 2 Caines, 169; Jackson v. Sample, 1 Johns. Cas. 231 ;
Jackson v. Sidney, 12 Johns. 185 ; Doe v. Potts, 1 Hawks, R. 469.

2 Denn v. Purvis, 1 Burr. 326; Guy v. Rand, Cro. El. 12; Santee v.
Keister, 6 Binn. 36. ‘

3 Doe v. Wippel, 1 Esp. R. 360; Roe v. Lonsdale, 12 East, 39; Dewey »v.
Brown, 2 Pick. 387; Somes v. Skinner, 3 Pick. 52; Holyoke v. Haskins, 9
Pick. 259; Gist v. Robinet, 3 Bibb, 2; Ward v. Harrison, Id. 304; Larue
v. Slack, 4 Bibb, 358. Contra, Carroll v. Norwood, 1 H. & J. 100, 167;
Young v. Drew, 1 Taylor, R. 119.

4 Doe v. Cuff, 1 Campb. 173; Oakes v. Brydon, 3 Burr.1895; Doe ».

* Roe, 1 Anstr. 86.
360 LAW OF EVIDENCE. [PART Iv.

yet an undisturbed and quiet possession for a long time,
is a fact from which an ouster may be found by the
Jury.

§ 319. Where the action is brought by a landlord against
his tenant, or is between persons in privity with them, the
claimant must show that the tenancy is determined’; other-
wise, being once recognized, it will be presumed still to sub-
sist. It may be determined, either by efflux of time; or, by
notice ; or, by forfeiture for breach of condition?

§ 320. If the tenancy is determined by lapse of time, this
may be shown by producing and proving the counterpart of
the lease. And if it depended on the happening of a par-
ticular event, the event also must be proved to have hap-
pened? If the demise was by parol, or the lease is lost, it
may be proved by a person who was present at the demise;
or, by evidence of the payment of rent; or, by admissions
of the defendant, or other competent secondary evidence.*

§ 321. Where it is determined by notice to quit, or by
notice from the tenant that he will no longer occupy, the
tenancy must be proved, with the tenor and service of the
notice given, the authority of the person who served it, if
served by an agent, and that the time mentioned in the
notice was contemporaneous with the expiration of the ten-
ancy, or with the period when the party was at liberty so to
terminate it. And if a custom is relied on, as entitling the
party so to do, this also must be shown 5 If the tenant, on

 

1 Doe v. Prosser, Cowp. 217; Fairclaim v. Shackleton, 5 Burr, 2604;
Brackett v. Norcross,'1 Green]. 89; Doe v. Bird, 11 East, 49. And see 2
Cruise’s Dig. tit. 20, § 14, note, by Greenleaf, [2d ed. 1856.]

2 Adams on Eject. by Tillinghast, pp. 276, 277.

3 Id. p. 278.

4 See ante, Vol. 1, § 560, asto laying a foundation for the admission of
secondary evidence of a written instrument, by notice to the adverse party
to produce it,

5 Adams on Eject. by Tillinghast, pp. 120, 181, 278,279. By the Common
PART IV.] EJECTMENT. 361

application of his landlord to know the time when the lease
commenced, states it erroneously, and a notice to quit is
served upon him according to such statement, the tenant is
estopped to prove a different day.! He is also concluded by
the time stated in the notice, if at the time of service, he
assents to its terms. But if the tenant, being personally
served with notice, made no objection to it at the time, this
is primé facie evidence to the Jury, that the term commenced
at the time mentioned in the notice.’ If, however, the notice
was not personally served, or was not read by the tenant
nor explained to him, no such presumption arises from his
silence.*

§ 322. The service of the notice may be proved by the per-
son who delivered it; but if there was a subscribing witness,
he also must be called, as in other cases of documentary
evidence. The contents of the notice may be shown by a
copy; or, if no copy was taken, it may be proved by a wit-
ness; and in either case, no previous notice to produce the
original will be required.®

§ 323. The form of notice must be explicit and positive,
truly giving to the party, in itself, all that is material for him
to know upon the subject. A misdescription of the premises,

 

Law, a parol notice is sufficient. Doe v. Crick, 5 Esp. 196; Legg v. Benion,
Willes, 43. If the party has disclaimed or denied the tenancy, no notice
is necessary. Doe v. Grubb, 10 B. & C. 816; Doe v. Pasquali, Peake’s
Cas. 196; Bull. N. P. 96. And a new notice, or receipt of rent or a distress
for rent, subsequently accrued, is evidence of a waiver of a prior notice.
Doe v. Palmer, 16 East, 53; Zouch v. Willingale, 1 H. Bl. 811; Doe »v.
Batten, Cowp. 243.

1 Doe v. Lambly, 2 Esp. 635.

2 Adams on Eject. p. 280.

3 Doe v. Forster, 13 East, 405; Doe v. Woombwell, 2 Campb. 559;
Thomas v. Thomas, 2 Campb. 647; Oakapple v. Copous, 4 T. R. 361.

4 Doe v. Harris, 1 T. R. 161; Doe v. Calvert, 2 Campb. 378.

5 Ante, Vol. 1, §§ 561, 569; Adams on Eject. by Tillinghast, p. 279; Jory
v. Orchard, 2 B. & P. 39, 41; Doe v. Durnford, 2 M. & 8. 62; Doe v. Som-:
erton, 7 Ad. & El. 58,N.8S.

VOL. IL 31
362 LAW OF EVIDENCE. [PART IV.

or a misstatement of dates, which cannot mislead, will not
vitiate the notice;} nor need it be directed to the person?
Even if directed by a wrong name, yet if he keeps it with-
out objection, the error is waived.2 A notice as to part only
of the demised premises, is bad;* but a notice by one of
several joint-tenants, will enable him to recover his share?
The notice, however, must be such as the tenant may act
upon at the time when it is given. Where, therefore, two
only of three executors gave notice, “ acting on the part and
behalf of themselves and the said J. H.,” the other executor,
this was held insufficient, though it was afterwards recog-
nized by the third; the lease requiring a notice in writing,
under the hands of the respective parties ; for at the time
when it was served, the tenant could not know that it
would be ratified and adopted by the other.6 But where the
notice was signed by an agent professing to act as the agent
of all the lessors, it was held sufficient to enable the defend-
ant to act upon with certainty, though in fact the letter of
attorney was not signed by all the lessors until a subsequent
day.’

§ 324. Service of notice at the dwelling-house of the party
is sufficient, whether upon the party i in person, or his wife, or
servant And if there are two joint lessees, service on one
of them is primd facie evidence of a service on both? If
the lessee has assigned his interest to one, between whom
and the landlord there is no privity, the notice should be
served on the original lessee.!

 

1 Doe ex dem. Cox, 4 Esp. 185; Doe v. Kightley, 7 T. R. 63.

2 Doe v. Wrightman, 4 Esp. 5.

3 Doe v. Spiller, 6 Esp. 70.

4 Doe v. Archer, 14 East, 245.

5 Doe v. Chaplin, 3 Taunt. 120.

6 Right v. Cuthell, 5 East, 491, 499, per Lawrence, J.

7 Goodtitle v. Woodward, 8 B. & Ald. 689.

8 Widger v. Browning, 2 C. & P. 523; Doe v- Dunbar, 1 M. & Malk. 10;
Jones v. Marsh, 4 T. R. 464; Doe v. Lucas, 5 Esp. 153.

9 Doe v. Crick, 4 Esp. 196; Doe v. Watkins, 7 East, 553.

10 Roe v. Wiggs, 2 New R. 830; Pleasant v. Benson, 14 East, 234.
PART IV.] EJECTMENT. 368

§ 325. Notice to quit is not necessary, where the relation
of landlord and tenant is at an end, as, in the case of a ten-
ant holding over by sufferance ;1 nor, where the person in
possession is but a servant or bailiff to the owner;? nor,
where he has either never admitted the relation of landlord
and tenant, as, if he claims in fee, or adversely to the plain-
tiff; ° or, has subsequently disclaimed and repudiated it, as,
for example, by attorning to a stranger, or the like But
such notice is deemed necessary only where the relation of
landlord and tenant does exist, whether it be created by an
express demise, or is incidentally admitted, either by the
acceptance of rent, or by entering under an agreement to
purchase, or the like. And notice, if given, is waived on
the part of the landlord, by a subsequent new notice to quit;
or, by the receipt of rent before the bringing of an eject-
ment; or, by a distress for rent accruing subsequently to the
expiration of the notice to quit; or, by an action for subse-
quent use and occupation ; or, by any other act on the part
of the lessor, after knowledge by him of the tenant’s default,
recognizing the tenancy as still subsisting.®

§ 326. Where the ejectment is founded upon the forfeit-
ure of a lease for non-payment of rent, and the case is not

 

1 Jackson v. Parkhurst, 5 Johns. 128; Thunder v. Belcher, 3 East, 449,
451; Jackson v. McLeod, 12 Johns. 182.

2 Jackson v. Sample, 1 Johns. Cas. 231.

3 Jackson v. Deyo, 3 Johns. 422; Jackson v. Cuerden, 2 Johns. Ch. 353;
Doe v. Williams, Cowp. 622; Doe v. Creed, 5 Bing. 327.

4 Bull. N. P. 96; Doe «. Frowd, 4 Bing. 557, 560; Jackson v. Wheeler,
6 Johns. 272; Doe v. Grubb, 10 B. & C. 816; Doe v. Whittick, Gow,
195.

5 Jackson v. Wilsey, 9 Johns. 267; Jackson v. Rowen, Id. 330; Ferris v.
Fuller, 4 Johns. 213; Jackson v. Deyo, 3 Johns. 422.

6 Doe v. Palmer, 16 East, 53; Doe v. Inglis, 3 Taunt. 54; Armsby »v.
Woodward, 6 B. & C. 519; Roe v. Harrison, 2 T. R. 425; Goodright v.
Davis, Cowp. 803; Doe v. Batten, Cowp. 243; Doe v. Meaux,1C. & P.
346; 4 B. & C. 606, 8. C.; Doe v. Johnson, 1 Stark. R. 411. By the
Common Law, the receipt of the rent previously due, is a waiver of the
forfeiture occasioned by its non-payment. 1 Saund. 287, note (16), by
Williams.
364 LAW OF EVIDENCE. [PART Iv.

governed by any statute, but stands at Common Law, the
plaintiff must prove that he demanded the rent, and that
the precise sum due, and neither more nor less, was de-
manded ; that the demand was precisely upon the day when
the rent became due and payable; that it was made at a
convenient time before sunset on that day ; that it was made
upon the land, and at the most notorious place upon it, and
if there be a dwelling-house on it, then at the front or prin-
cipal door, though it is not necessary to enter the house,
even if the door be open; and that a demand was in fact
made, although no person was there to pay it. But if any
other place was appointed, where the rent was payable, the
demand must be proved to have been made there. A de-
mand made after or before the last day of payment, or not
upon the land, or at the place, will not be sufficient to defeat
the estate.

§ 327. If the lease contained an express limitation, that
upon non-payment, or other breach, the lease should become
absolutely void, then no entry by the landlord need be made,
but an ejectment lies immediately, upon the breach, with
proof of demand of rent as before stated, if the breach was
by non-payment. But where the terms of the lease are,
that upon non-payment or other breach, it shall be lawful for
the lessor to reénter, there, by the Common Law, the plain-
tiff must show an entry, made in reasonable time, and be-
cause of such breach; unless the entry is confessed in the
consent-rule, which is now held sufficient. And in this latter
class of cases, if the lessor, after notice of the forfeiture,
(which is an issuable fact,) accepts rent subsequently accru-
ing, or distrains for the rent already due, or does any other
act which amounts to a recognition of the relation of land-

 

1 See 1 Saund. 287, note (16), by Williams, and cases there cited. The
strictness of the Common Law, in the particulars mentioned in the text, has
been abated, and the subject otherwise regulated by statutes, both in Eng-
land and several of the United States; but as these statutory provisions are
various in the different States, rendering the subject purely a matter of local
law, they are not here particularly stated.
PART IV.] EJECTMENT. 365

lord and tenant as still subsisting, or to a dispensation of the
forfeiture, the lease, which before was voidable, is thereby
affirmed; and this will constitute a good defence to the
action If the tenant, after demand of the rent, but before
the expiration of the last day, tenders the sum due, this also
will save the forfeiture.?

§ 328. If the breach consisted in assigning or underletting
without the consent of the lessor, it has been held sufficient
for the plaintiff to show that another person was found in
possession, acting and appearing as tenant, this being primd
facie evidence of an underletting, and sufficient to throw
upon the defendant the burden of proving in what character
such person held possession of the premises. And in such
case, the declarations of the occupant are admissible against
the defendant, to show the character of the occupancy.®

§ 329. Where the action is between a mortgagee and the
mortgagor, the mortgagee’s case is ordinarily made out by
the production and proof of the mortgage deed, which the
defendant is estopped to deny. If the action is against a
tenant of the mortgagor, the determination of the tenancy
must be proved; unless it commenced subsequent to the
mortgage, and has not been acknowledged by the mort-
gagee; in which case no notice to quit needs be shown.*
And where the mortgage deed contains a proviso that the

 

11 Saund. 287, note (16), by Williams, and cases there cited; Doe v.
Banks, 4 B. & Ald. 401; Fawcett v. Hall, 1 Alcock & Napier, R. 248; Zouch
v. Willingale, 1 H. Bl. 311. But the rent must have been received as between
landlord and tenant, and not upon any other consideration. Right v. Bawden,
3 East, 260. i

2 Co. Litt. 202 a.

3 Doe v. Rickarby, 5 Esp. 4, per Ld. Alvanley; Ante, Vol. 1, §§ 108, 109.

4 Thunder v. Belcher, 3 East, 449; Keech v. Hall, 1 Doug. 21; Jackson
v. Chase, 2 Johns. 84; Jackson v. Fuller, 4 Johns. 215; Birch v. Wright, 1
T. R. 378, 388. But if the mortgagee or the assignee of the mortgage has
acknowledged the tenancy by the receipt of rent, a notice to quit is neces-
sary tobe proved. Ibid.; Clayton v. Blackey, 8 T. R. 3. See also Jackson
v. Stackhouse, 1 Cowen, 122.

31 *
866 LAW OF EVIDENCE. [PART Iv.

mortgagor may remain in possession until the condition is
broken, it will be necessary for the plaintiff to prove a
breach! Whether, in general, a mortgagor is entitled to
notice to quit, seems not to be perfectly clear by the author-
ities. In England, he is held not entitled to such notice ;?
but in some of the United States it has been held other-
wise?

§ 330. Payment of the mortgage debt, is a good defence
to an action at law, brought by the mortgagee, against the
mortgagor, to obtain possession of the mortgaged premises ;
but if the mortgagee is already in possession, the remedy of
the mortgagor, where no other is provided by statute, is by
bill in equity. And where usury renders the security void,
.this may also be shown in defence, against an action brought
by the mortgagee upon the mortgage.

§ 331. As the claimant in ejectment, or other real action,
can recover only upon the strength of his own title, and not
upon the weakness of that of the tenant, the defence will
generally consist merely in rebutting the proofs adduced by
the plaintiff° For possession is always primd facie evidence
of title ; and the party cannot be deprived of his possession
by any person but the rightful owner, who has the jus pos-
sessionis.’ The defendant, therefore, needs not show any

 

1 Hall'v. Doe, 5 B. & Ald. 687.

2 Keech v. Hall, 1 Doug. 21; Thunder v. Belcher, 3 East, 449; Patridge
v. Beere, 5 B. & Ald. 604.

3 Jackson v. Laughead, 2 Johns. 75; Jackson v. Green, 4 Johns. 186.

4 Gray v. Jenks, 3 Mason, R: 520; Gray v. Wass, 1 Greenl. 260; Vose v.
Handy, 2 Greenl. 322; Perkins v. Pitts, 11 Mass. 125; Erskine v. Townsend,
2 Mass. 493; Wade -. Howard, 11 Pick. 289; Howard v. Howard, 3 Met.
548, 557; Hitchcock v. Harrington, 6 Johns. 290, 294; Jackson v. Stack-
house, 1 Cowen, R. 122; Deering v. Sawtel, 4 Greenl. 191.

5 Holton v. Button, 4 Conn. R. 436; Deering v. Sawtel, 4 Greenl. 191 ;
Chandler v. Morton, 5 Greenl. 174 ; Richardson v. Field, 6 Greenl. 35.

8 See infra, § 555-558.

7 Adams on Eject. pp. 285, 286, by Tillinghast; Hall v. Gittings, 2 Har.
& Johns. 122; Lanev. Reynard, 2S. & R. 65; Supra, §§ 308, 804. As to the
PART IV.] EJECTMENT. 367

title in himself, until the plaintiff has shown some right to
disturb his possession. Thus, if the plaintiff claims as heir,
and proves his heirship, the defendant may show a devise
by the ancestor to a stranger; or, that by the local law, some
other person is entitled as heir; or that the claimant is ille-
gitimate, or the like. So,if he-claims as devisee, the defend-
ant may prove that the will was obtained by fraud, or may
impeach its validity on any other grounds, not precluded by
the previous probate of the will And he may also defeat
the plaintiff’s claim, by showing that the real title is in
another, without claiming under it, or deducing it to himself,
either by legal conveyance, or operation of law.2 But he
cannot set up a merely equitable title or lien to defeat a legal
title, under which the plaintiff claims.

§ 332. As the damages given in an action of ejectment
are now merely nominal, the title alone being the subject of
controversy, the plaintiff is permitted to recover his real dam-
ages in an action of TRESPASS FOR MESNE PROFITS ; in which
he complains of his having been ejected from the possession
of the premises by the defendant, who held him out and
took the rents and profits, during the period alleged in the
declaration. And as this remedy is one of the incidents and

 

presumption of a conveyance from the trustee to the cestui que trust, see
1 Cruise’s Dig. tit. 12, ch. 2, § 39, note, (Greenleaf’s ed.) [2d ed. 1856.]

1 Adams on Eject. p. 286, by Tillinghast.

2 Id. 29, 30, 31; Hunter v. Cochran, 3 Barr, 105. But if he entered
under a contract to purchase from the plaintiff, he is estopped to deny the
plaintiff’s title. Norris v. Smith, 7 Cowen, R. 717; 1 Cruise’s Dig. tit. 12,
ch. 2, § 36, note, (Greenleaf’s ed.) [2d ed. 1856]; 2 Wheat. 224, note (a).

3 Adams on Eject. p. 32; 1 Cruise’s Dig. ubi supra; Id. § 38, note;
Roe v. Reed, 8 T. R. 118, 123; Jackson v. Sisson, 2 Johns. Cas. 321; Jack-
son v. Harrington, 9 Cowen, R. 88; Jackson v. Parkhurst, 4 Wend. 369;
Sinclair v. Jackson, 8 Cowen, R. 543; Heath v. Knapp, 4 Barr, 230. But
in Pennsylvania, it seems that an ejectment is regarded as an equitable
remedy, and judgment is rendered at law, upon any principles which would
require « decree in Chancery. Peebles v. Reading, 8 8S. & R. 484; De-
lancy v. McKean, 1 Wash. C. C. R. 354; Thomas v. Wright, 9 S. & R.
87, 93.

4 There is some diversity in the different American States, as to the
368 LAW OF EVIDENCE. [PART IV.

consequences of an ejectment, it is usually considered under
that head. “We have heretofore seen,! that the Jaw considers
the lessor of the plaintiff, and the actual tenant, as the real
parties, in an action of ejectment; and therefore the action
for mesne profits may be brought by the lessor of the plain-
tiff, as well as by the nominal plaintiff himself. The evi-
dence on the part of the plaintiff, consists of proof of his
possessory title; the defendant’s wrongful entry; the time
of his occupation; the value of the mesne profits; and any
other damages and expenses recoverable in this action.

§ 333. Where this action is between the parties to the
prior action of ejectment, and the plaintiff proceeds only for
profits accruing subsequent to the alleged date of the demise,
the record of the judgment in that case will be conclusive
evidence of the plaintiff’s title, and of the defendant’s entry
and possession, from the day of the demise laid in the decla-
ration? If the plaintiff would claim for-profits antecedent to
that time, he must prove his title as in other cases, and the
defendant will not be estopped to gainsay it. So, if the suit
is against a precedent occupant, the judgment in ejectment
is no proof of the plaintiff’s title And if the suit is against
the landlord of the premises, a judgment in ejectment against

 

remedy for mesne profits, which it is not within the plan of this treatise to
consider. See Gill v. Cole, 1 Har. & J. 403; Lee v. Cooke, Gilmer, R. 331;
Coleman v. Parish, 1 McCord, 264; Sumter v. Lehie, 1 Const. R. 102;
Cox v. Callender, 9 Mass. 533. See infra, § 548-552. Where provision is
made by statute for an allowance to the tenant in a real action for the value
of his lasting improvements, of which he avails himself at the trial, the value
of the mesne profits is generally taken into the estimate, by special pro-
visions for that purpose.

1 Ante, Vol. 1, § 535.

2 Adams on Eject. 334; Dodwell v. Gibbs, 2 C. & P. 615; Dewey v.
Osborn, 4 Cowen, R. 829, 335; Van Allen v. Rogers, 1 Johns. Cas. 281;
Benson v. Matsdorf, 2 Johns. 869; Chirac v. Reinicker, 11 Wheat. 280;
Lion v. Burton, 5 Cowen, R. 408.

8 Bull. N. P. 87; Ashlin v. Parkin, 2 Burr. 668; Jackson v. Randall,
11 Johns. 405 ; West v. Hughes, 1 Har. & J. 574.

4 Bull. N. P. 87.
PART IV.] EJECTMENT. 369

the casual ejector is not evidence of the plaintiff’s title,
unless the landlord has notice of the ejectment. 7

§ 334. The plaintiff must also prove his possession of the
premises. If the judgment in ejectment was rendered after
verdict against the tenant in possession, the consent-rule, if
it was entered into, will be sufficient proof of possession by
the plaintiff. But if no consent-rule was entered into, the
judgment being rendered against the casual ejector by de-
fault, the plaintiff’s possession must be proved, either by the
writ of possession and the sheriff’s return thereon, or, by evi-
dence that the plaintiff has been admitted to the possession
by the defendant The entry of the plaintiff, it seems, will
relate back to the time when his title accrued, so as to entitle
him to recover the mesne profits from that time?

§ 335. It will also be incumbent on the plaintiff to prove
the duration of the occupancy by the defendant, or by his ten-
ant, if he be the landlord; and in the latter case, if the judg-
ment in ejectment was against the casual ejector, by default,
it must be shown that the defendant was landlord when the.
ejectment was brought, which may be done by proof of his
receipt of rent accruing subsequent to the time of the de-
mise. The plaintiff must also prove that the landlord had
due notice of the service of the declaration in ejectment upon
the tenant in possession; but if he has subsequently prom-
ised to pay rent and the costs of the ejectment, this will
suffice.*

8

§ 336. The plaintiff in this action may recover the costs

 

1 Hunter v. Britts, 3 Campb. 455.

2 Bull. N. P. 87. It would seem that a judgment in ejectment recovered
by the plaintiff against the defendant, estops the latter from controverting
the plaintiff’s possession, as well as his title, of which possession is a part.
See Adams on Eject. 336, note (q); Calvart v. Hoyrsfall, 4 Esp. 167;

‘ Brown v. Galloway, 1 Peters, C. C. R. 291, 299; Jackson v. Combs, 7 Cowes,
R. 36.
3 Bull. N. P. 87, 88; Adams on Eject. 335.
4 Hunter v. Britts, 3 Campb. 455; Adams on Eject. 337.
370 LAW OF EVIDENCE. [PART IV.

incurred by him in a Court of Error, in reversing a judgment

‘in ejectment obtained by the defendant, as part of his dam-
ages, sustained by his having been wrongfully kept out of
possession by the act of the defendant; and the Jury will be
instructed to consider the costs between attorney and client
as the measure of this item of damages.! He also may
recover in this form the costs of the ejectment;? and, also,
under proper averments, the amount of any injury done to
the premises, in consequence of the’ misconduct of the
defendant or his servants, and any extra damages which the
circumstances of the case may demand?

§ 337. The defendant, in this action for mesne profits, if
he has in good faith made lasting improvements on the land,
may be allowed the value of them, against the rents and
profits claimed by the plaintiff But he cannot set up any
matter in defence, which would have been a bar to the
action of ejectment.2 Nor is bankruptcy a good plea in bar
of this action;® unless the case is such that the damages
were capable of precise computation, without the interven-
tion of a Jury, and might have been proved under the com-
mission.”

 

1 Nowell v. Roake, 7 B. & C. 404. And see Doe v. Huddart, 5 Tyrwh.
846; 2C. M. & R. 316, S. C.; Denn v. Chubb, 1 Coxe, N. J. Rep. 466.

2 Doe v. Davis, 1 Esp. R. 358; Baron v. Abeel, 3 Johns. 481; Symonds
v. Page, 1 C. & J. 29; Doe v. Hare, 4 Tyrwh. 29. For the defendant was
but nominal, in the ejectment. Anon. Lofff, 451.

3 Goodtitle v. Tombs, 3 Wils. 118,121; Adams on Eject. 337; Dewey
v. Osborn, 4 Cowen, 829; Dunn v, Large, 3 Doug. 335. In Maryland, the
action for mesne profits is only for the use and occupation, and is no bar to
an action of trespass quare clausum fregit, for any other injuries done to the
premises during the same period. Gill v. Cole, 1 Har. & J. 403.

4 Jackson v. Loomis, 4 Cowen, 168; Hylton v. Brown, 2 Wash. C. C.R.
165; Cawdor v. Lewis, 1 Y. & C. 427. But see Russell v. Blake, 2 Pick,
505.

5 Baron v. Abeel, 3° Johns. 481; Jackson v. Randall, 11 Johns. 405;
Benson v. Matsdorf, 2 Johns. 369.

6 Goodtitle v. North, 2 Doug. 584.

7 Utterson v. Vernon, 8 T. R, 539,

*
\

PART IV.] EXECUTORS AND ADMINISTRATORS. 371

EXECUTORS AND ADMINISTRATORS.

§ 338. Tus evidence, under this title, relates to the official
character of the parties, and to the cases and manner in which
it must be proved. Where the executor or administrator is
plaintiff, and sues upon a contract made wih the testator, or
for any other cause of action accruing in his lifetime, he
makes profert of the letters testamentary, or of the letters of
administration ;! for he must declare in that character, in
order to entitle himself upon the record, to recover judgment
for such a cause; and if the defendant would controvert the
representative character of the plaintiff, in such case, by rea-
son of any extrinsic matter, not appearing on the face of
the letters, such as the want of bona notabilia, or the like, he
must put it in issue by a plea in abatement, or, as it seems,
by a plea in bar;? and cannot contest it under the general
issue, this being a conclusive admission of the plaintiff’s
title to the character in which he sues. But in regard to
causes of action accruing subsequent to the decease of the
testator or intestate, such as in trover, for a subsequent con-

 

11 Chitty on Plead. 420. The practice in the United States, in this
respect is not uniform; the profert, in some of the States, being omitted.
Langdon ». Potter, 11 Mass. 813; Champlin v. Tilley, 3 Day, 305; Amer.
“Prec. Decl. p. 91; Prettyman v. Waples, 4 Harringt. 299; Chapman v.
Davis, 4 Gill, 166; Thames v. Richardson, 3 Strobh. 484. The rule, re-
quiring profert of letters testamentary, is itself an exception from the gen-
eral rule, that profert is required of deeds only. Gould on Pleading, p. 442,

43.

: 2 Langdon v. Potter, 11 Mass. 318, 316; 1 Chitty on Plead: 489, [358];
1 Saund. 274, note (3), by Williams.

3 Loyd v. Finlayson, 2 Esp. 564; Marshfield v. Marsh, 2 Ld. Raym. 824 ;
Gidley v. Williams, 1 Salk. 37, 38; 5 Com. Dig. tit. Pleader, 2 D. 10, 14;
Watson v. King, 4 Campb. 272; Stokes v. Bate, 5 B. & C. 491; Yeomans
v. Bradshaw, Carth. 873; Hilliard v. Cox, 1 Salk. 37.
872 LAW OF EVIDENCE. [PART IV.

version of his goods, or in assumpsit, for his money subse-
quently received by the defendant, and the like, though it is
always proper for the plaintiff to sue in his representative
character, wherever the money, when recovered, will be assets
in his hands, yet it is not always necessary that he should
do so. For where the action is upon a personal contract
made with himself, respecting the property of the deceased,
or is for a violation of his actual possession of the assets,
he may sue either in his private or in his representative
capacity! But in other cases, where the cause of action
accrued in his own time, he must sue in his representative
capacity, and must prove this character, under the general
issue, which raises the question of title

§339. The proof of the plaintiff’s representative character,
is made by producing the probate of the will, or the letters
of administration, which, primé facie, are sufficient evidence
for the plaintiff, both of the death of the testator or intestate,
and of his own right to sue. Where an oath of office and
the giving of bonds, are made essential, by statute, to his
right to act, these also must be proved. The probate itself
is the only legitimate ground of the executor’s right to sue
for the personalty ; and is conclusive evidence, both of his
appointment and of the contents of the will; and if granted
at any time previous to the declaration, it is sufficient, for
the probate relates back to the death of the testator. The

 

1 Hunt v. Stevens, 3 Taunt. 113, 115; Hollis v. Smith, 10 East, 293;
Blackham’s case, 1 Salk. 290; 2 Saund. 47 ¢, note by Williams; Heath v.
Chilton, 12 M. & W. 632. The allegation of his representative character,
in these two cases, will be regarded as surplusage, and needs not be proved.
Crawford v. Whittal, 1 Doug. 4,n. See also Powley v. Newton, 6 Taunt.
458, 457; Clark v. Hougham, 2 B. & C. 149.

2 Smith v. Barrow, 2 T. R. 476, 477, per Ashhurst, J.; Crawford v.
Whittal, 1 Doug. 4, note (1); Hunt v. Stevens, 3 Taunt. 113.

3 In an action on a promissory note made payable “to the executors of
the late W. B.,” it was held necessary for the plaintiffs to produce both the
probate of the will and the grant of administration annexed to it. Hamilton
vy. Aston, 1 C, K. 679, per Rolfe, B.

4 Smith v. Milles, 1 T. R. 475, 480; Woolley v. Clark, 5 B. & Ald. 744;
Wankford v. Wankford, 1 Salk. 299, 301, 306, 307; Loyd v. Finlayson, 2
PART IV.] EXECUTORS AND ADMINISTRATORS. 378

same principle governs in the case of an administrator ;
whose title, though it does not exist until the grant of ad-
ministration, relates back to the time of the death of the
intestate, so as to enable him to maintain an action for an
injury to the goods of the intestate, or for the price, if they
have been sold by one who had been his agent! But the
defendant may show that the probate itself, or the letter of
administration, i is a forgery ;? or that it was utterly void, for
want of jurisdiction over the subject, by the Court which
granted it;® whether because the person was still living, or
because he had no domicile within the jurisdiction of the
Court, where this is essential;* or for any other sufficient
cause.

§ 340. The plaintiff’s character as administrator may. also
be shown by an exemplified copy of the record of the grant
of the letters, or by a copy of the book of Acts or original
minutes of the grant, as has already been stated.> I letters
of administration have been granted to the wrong person,
they are only voidable, and liable to be repealed; but if
granted by the wrong Court, they are void.

§ 341. Where the plaintiff is bound to prove his repre-

Esp. R. 564; 1 Com. Dig. 340, 341, tit, ADMINISTRATION, B.9,10; Dublin
v. Chadbourn, 16 Mass. 433. The probate will be presumed to have been
rightly made. Brown v. Wood, 17 Mass. 68, 72; Ante, Vol. 1,§550. [The
decrees of a Probate Court, as to the appointment of an administrator made
in the exercise of its jurisdiction, are conclusive, in an action by the admin-
istrator against a stranger, to recover a debt due to the intestate. Emery ».
Hildreth, 2 Gray, 230. It would seem, that where a Probate Court has
Jurisdiction of the subject-matter, the validity of its action can be tried only
in the Probate Court, or in the appellate Court sitting as the Supreme Court
of Probate. Ibid. See also Bellinger v. Ford, 21 Barb. 311.]

1 Foster v. Bates, 12 M. & W. 226; Tharpe v. Stallwood, 6 Scott, N. R.
715.

2 Bull. N. P. 247; Chichester v. Phillips, T. Raym. 405.

3 Bull. N. P. 143, 247; Noell v. Wells, 1 Lev. 235, 236; [Emery v. Hil-
dreth, 2 Gray, 230.] «

-4 Harvard College v. Gore, 5 Pick. 370.

5 Ante, Vol. 1, § 519.

VOL. I. 32
374 LAW OF EVIDENCE. [PART IV.

sentative character of executor, under the general issue, as
part of his title to sue, and it appears that there are several
executors, some of whom have not joined in the suit, it is
fatal, though all have not proved the will; unless they have
renounced the trust. And where the plaintiff sues as ad-
ministrator de bonis non, it is sufficient to prove the grant of
administration to himself, which recites the letters granted
to the preceding administrator, without other proof of the
latter?

§ 342. If the action is upon promises made to the de-
ceased, to which the Statute of Limitations is pleaded, the
declaration, according to the English practice, will not be
supported by evidence of a new promise made to the execu-
tor or administrator; but in the American Courts this rule
is not univerally recognized; and where the plea is actio
non accrevit infra sex annos, the weight of argument seems
in favor of admitting the evidence. In both countries, leave

 

1 Munt v. Stokes, 4 T. R. 565, per Buller, J.

2 Catherwood v. Chabaud, 1 B. & C. 155. %

3 2 Saund. 68, f. g. note by Williams. In Green (or Dean) v. Crane, 2
Ld. Raym. 1101, 6 Mod. 309, 1 Salk. 28, which is the leading case on this
subject, the plea was non assumpsit infra sez annos, and to this issue it was
held, that the evidence of a new promise to the executor would not apply.
So in Hickman v. Walker, Willes, 27. In Sarell v. Wine, 3 East, 409,
Jones v. Moore, 5 Binn, 573, and Beard v. Cowman, 3 Har. & McHen. 152,
the form of the issue is not stated. In Fisher v. Duncan, 1 Hen. & Munf.
563, and in Quarles v. Littlepage, 2 Hen. & Munf. 401, the action was against
the executor; and the point in question was therefore not before the Court.
On the other hand, in Heylin v. Hastings, Carth. 470, it was held, upon the
issue of non assumpsit infra sex annos, that evidence of a new promise to
the executor within six years was admissible, as well as sufficient to take the
case out of the statute. And such also is the practice in Massachusetts, and
in Maine. Baxter v. Penniman, 8 Mass. 1383, 1384; Emerson v. Thompson,
16 Mass. 428; Brown v. Anderson, 13 Mass. 201; Sullivan v. Holker, 15
Mass. 374. Where the issue is actio non accrevit infra sex annos, the tech-
nical reason for not admitting evidence of an acknowledgment or prontise to
the executor entirely fails; and indeed, in any case, a promise to the execu-
tor amounts only to an admission that the debt due to the testator has never
been paid, but is still subsisting, and therefore is not barred by the Statute
of Limitations. See 5 Binn. 582, 583, per Brackenridge, J.; Angell on Lim-
itations, p. 278.
PART IV.] EXECUTORS AND ADMINISTRATORS. 375

will be granted to amend the declaration, by adding a new
count on a promise to the executor.

§ 343. If the defendant is sued as executor, his representa-
tive character may be shown, either by the evidence, already
mentioned as proof of that character in the plaintiff or by
proof of such acts of intermeddling in the estate, as estop
him to deny the title, constituting him what is termed an
executor de son tort. Very slight acts of intermeddling have
formerly been held sufficient for this purpose ; but the mate-
rial fact for the Jury to find, is, that the party has intruded
himself into the office of executor; and this may well be in-
ferred from such acts as are lawful for an executor alone to
do, such as taking and claiming possession of the goods of
the deceased, or selling them, or converting them to his own
use; collecting, releasing, or paying debts; paying legacies;
or any other acts, evincing a claim of right to dispose of the
effects of the deceased. But if the acts of intermeddling ap-
pear to have been done in kindness, merely for the preserva-
tion of the goods or property, or for the sake of decency or
charity, such as, in the burial of the dead, or the immediate
support and care of his children, or in the feeding and care of
his cattle ; or, as the servant of one having the actual custody
of the goods, and in ignorance of his title; or, in execution
of orders received from the deceased as his agent, in favor of
the vested rights of a third person; or the like; the party
will not thereby be involved in the responsibilities of an
executorship.2 So, if he, in good faith, sets up a colorable

 

1 After notice to produce the probate of the will, an office-copy, and an
extract from the Act-book, have been held admissible, without proof that the
probate was in the defendant's possession, or of the signature of the registrar.
Waite v. Gale, 9 Jur. 782.

2 Williams on Executors, p. 136-146; 1 Dane’s Abr. ch. 29, art.6; Givers
v. Higgins, 4 McCord, 286 ; Toller on Executors, p. 37-41. Butif the agent,
after the decease of his principal, continues to deal with the property on his
own responsibility, or as the agent of another, he may be charged as executor.
Cottle v. Aldrich, 4 M. & S. 175; 1 Stark. 37, 8. C.; Turner v. Child, 1
Dever. 331. See also Mitchell v. Lunt,4 Mass. 654, 658; Hobby v. Ruel, 1
C. & K. 716. So, if the agent continues to act as such, after the death of his
376 LAW OF EVIDENCE. [PART Iy.

title to the possession of the goods of the deceased, though
he may not be able to establish it as a completely legal title
in every respect, he will not be deemed an executor de son
tort.| And in all these cases the question, whether the party
is chargeable as executor de son tort, is a mixed question of
law and fact, similar to the question of probable cause, in
an action for a malicious prosecution, the province of the
Jury being only to say whether the facts are sufficiently
proved.?

§ 344. If the defendant would controvert the fact of the
representative character, this is done by the plea of ne unques
executor, or administrator; in which case the burden of
proving the affirmative is on the plaintiff; who must prove,
not only the appointment of the defendant to that office, but
that he has taken upon himself the trust; and this may be
by his proving the will, or taking the oaths, and giving bond,
or, if he is charged as executor de son tort, by proving acts
of intermeddling with the estate. The plaintiff should always
take the precaution, where this plea is pleaded, to serve the
defendant with notice to produce the letters testamentary, or
letters of administration, at the trial, they being presumed
to be in his possession ; in order to lay a foundation for the
introduction of secondary evidence He must also give
some evidence of the identity of the party, with the person
described in the letters as executor or administrator. If the
evidence shows the defendant liable as an executor de son

 

principal, and in the belief that he is still alive, he has been held liable to a
creditor of the deceased, as executor de son tort. White v. Maun, 13 Shepl.
361.

1 Femings v. Jarratt, 1 Esp. 335; Turner v. Child, 1 Dever. 25. The
party who knowingly receives goods from an executor de son tort, and deals
with them as his own, does not himself thereby become an executor de son
tort. Paull v. Simpson, 9 Ad. & El. 365, N. S.

2 Padget v. Priest, 2 T. R. 99, per Buller, J.

3 2 Saund. on Plead. & Evid"511, 512; 2 Stark. Evid. 820; Douglas v.
Forrest, 4 Bing. 686, 704; Atkins v. Tredgold, 2 B. & C. 28, 36; Cottle v-
Aldrich, 4 M. & 8.175. Sed quere as to this presumption, and see Waite wv
Gale, 2 Dow]. & Lowndes, 925; 9 Jur. 782. :
PART IVv.] EXECUTORS AND ADMINISTRATORS. 3717

tort, by intermeddling, he may discharge himself by proof
that he delivered the goods over to the rightful executor
before action brought, but not afterwards;! or, that he sub-
sequently took out letters of administration, and has ad-
ministered the estate according to law? If he has received
the money of third persons, asswmpsit for money had and
received will lie against him, without declaring against him
as executor

§ 345. By pleading ne ungues executor, the defendant, if
the issue is found against him, will be charged with the
whole debt;* without being allowed to retain the amount
of a debt due from the deceased to himself, even if itis of a
higher nature, and he has the assent of the rightful executor,
after action brought.2 But an executor de son tort is, in
general, liable to creditors only for the amount of the assets
in his hands at the time of the action; and, therefore, if he
pleads plene administravit, he may give in evidence pay-
ment of the just debts of the deceased, to any creditors in
the same or a superior degree ;* or, as we have just seen, he
may show that, before action brought, he had delivered over
the goods in his hands, to the rightful executor or adminis-
trator.”

§ 346. If the plaintiff traverses the plea of plene adminis-

 

1 Curtis v. Vernon, 3 T. R. 587; Vernon v. Curtis, 2 H. Bl.18; Andrews
v. Gallison, 15 Mass. 325.

2 Shillaber v. Wyman, 15 Mass. 322; Andrews v. Gallison, Id. 825.

3 Waite v. Gale, 9 Jur. 782; 2 Dowl. & L. 925.

4 Anon. Cro. El. 472; Mitchell v. Lunt, 4 Mass. 658; Hob. 49 b, note by
Williams; Bull. N. P. 144.

5 Treland v. Coalter, Cro. El. 630; Curtis v. Vernon, 3 T. R. 587; 2 H.
Bl. 18.

6 Mountford v. Gibson, 4 East, 441, 445; Toller, Ex’rs, p. 474. And it
seems that he may make his defence even against the rightful administrator.
Weeks v. Gibbs, 9 Mass. 74, 77. :

7 Anon. 1 Salk. 313; Hob. 49 6, note by Williams; Curtis v. Vernon,
3 T. R. 587; Vernon v. Curtis, 2 H. Bl. 18; Andrews v. Gallison, 15
Mass. 325.

32*
378 LAW OF EVIDENCE. [PART IV.

travit, in its material allegation of ‘the want of assets in the
defendant’s hands, the burden of proof will be on the plain-
tiff to show that the defendant had assets in his hands at the
commencement of the action.! If the assets have come to his
hands since the pendency of the suit, this should be specially
replied, or the proof will not be admissible If the action is
debt, the plea of plene administravit is an admission of the
whole debt, which therefore the plaintiff will not be bound
to prove; but if the action is asswmpsit, this plea is only an
admission that something is due, but not the amount; and
therefore the plaintiff must come prepared to prove it.

§ 347. The fact of assets in the hands of a defendant,
executor, or administrator, may be shown by the inventory
returned by him under oath, pursuant to law; which devolves
on him the burden of discharging himself from the items
which it contains. So, if he has repeatedly paid interest on
a bond, or on a legacy, this is primd facie evidence of assets.®
So, if he has given his own promissory note for a debt of the
deceased.6 So, if he has submitted to arbitration, without

 

1 Bentley v. Bentley, 7 Cowen, 701. And see Fowler v. Sharp, 15 Johns.
323; 2 Phil. Evid. 295.

2 Mara v. Quin, 6 T. R.1, 10, 11.

3 Bull. N. P. 140; Saunderson v. Nicholl, 1 Show. 81; Shelly’s case, 1
Salk. 296.

Weeks v. Gibbs, 9 Mass. 74; Bull. N. P. 142, 1483; Hickey v. Hayter, 1
Esp. 313; 6 T. R. 884, 8. C.; Giles v. Dyson, 1 Stark. 32, But the schedule
or inventory, offered by the executor in the Ecclesiastical Court, for the pur-
pose of obtaining probate, is not generally any evidence that he has received
the effects therein mentioned. Stearn v. Mills, 4 B. & Ad. 657.

5 Corporation of Clergymen’s Sons v. Swainson, 1 Ves. 75; Cleverly v.
Brett, 5 T. R.8, n.; Campbell’s case, Lofft, 68; Atto.-Gen. y. Higham, 2 Y,
& C. 634. But it is not conclusive. Savage v. Lane, 6 Hare, 32; 17 Law
J. 89, Chan.; Postlethwaite v. Mounsey, 6 Hare, 33,n. Whether the pro-
bate stamp on a will is admissible, in England, as prima facie evidence of
assets in the hands of the executor to the amount indicated by the stamp, is
not clearly agreed. See Foster v. Blakelock, 5 B. & C. 828; Curtis v.
Hunt, 1C. & P. 180; Stearn v. Mills, 4 B. & Ad. 647; Mann v. Lang, 3
Ad. & El. 699.

6 Bank of Troy v. Hopping, 13 Wend. 577; Holland v. Clark, 2 ¥. & C.
319.
PART IV.] EXECUTORS AND ADMINISTRATORS. 379

protesting at the time against its being so taken! So, if he
confess judgment, or suffer it to go by default, or it be ren-
dered against him on demurrer to the declaration; or, if he
plead a judgment, without averring that he has no assets
ultra; or plead payment without also pleading plene admin-
istravit ; this is an admission of assets, and may be used
against him in a subsequent action on the judgment, sug-
gesting a devastavit2 But an award in favor of the estate is
no evidence that the executor has received the money; nor
is a judgment assets, until the amount is levied and paid.*
And if there are several executors, and some are shown to
have‘assets in their hands, and others are not, the latter will
be entitled to a verdict.®

§ 347 a. A devastavit may be proved by evidence of any
act of direct abuse, by the executor or administrator, of the
funds intrusted to his management, such as selling, embez-
zling, or converting them to his own use; or by releasing a
claim without payment, or selling property below its known
value ; or by improperly submitting a claim to arbitration, or
improperly compounding a debt, having no authority by law

 

1 Barry v. Rush, 1 T. R. 691; Worthington v. Barlow, 7 T. R. 453; Rid-
dle v. Sutton, 5 Bing. 200, But see Pearson v. Henry, 5 T. R. 5, contra.

2 Skelton v. Hawling, 1 Wils. 258; 1 Saund. 219, note (8), by Williams ;
Roberts v. Woods, 3 Dowl. P. C. 797; Ewing v. Peters, 3 T. R. 685; Rock
v. Layton, 1 Ld. Raym. 589; better reported in 3 T. R. 690-694, from Ld,
Holt’s own notes.

3 Williams v. Innes, 1 Campb. 364.

4 Jenkins v. Plume, 1 Salk. 207. [Where there is sufficient real estate
liable to be sold by due authority, to pay all debts, legacies, and charges, the
proceeds of which when sold would be assets, and the owners of the estate
to prevent the sale, offer to pay the amount in money, to pay which it is
proposed to be sold, and such offer is accepted and the money paid, espe-
cially if done with the approbation of the Court giving leave to sell the
same, the amount thus received is assets of the estate, to be accounted for
and paid as assets. Fay v. Taylor, 2 Gray, 160. Salary, voted to a person
after his decease, and paid to his executor, is assets of the estate, to be ac-
counted for by the executor. Loring v. Cunningham, 9 Cush. 87. See also
Wheelock v. Pierce, 6 Ib. 288 ; Foot v. Knowles, 4 Met. 586.]

5 Parsons v. Hancock, 1 M. & Malk. 330.
380 LAW OF EVIDENCE. [PART Iv.

so to do; or, by payment of usury; or the like; or by proof
of any other act, showing mal-administration or negligence,
whereby a loss or deterioration of assets has ensued.

§ 348. Under the issue of plene administravit, the defend-
ant may rebut the proof of assets, by showing that he has
exhausted them in the payment of other debts of the deceased,
not inferior in degree to that of the plaintiff, before the com-
mencement of the action” And if debts of an inferior degree

 

1 See Toller, Ex. b. 8, ch. ix.; 3 Bac. Abr. tit. Executors and Adminis-
trators, L.; 2 Kent, Comm. 416, notes (a), (a), 5th edit. And see Cooper
v. Taylor, 8 Jur. 450; Stroud v. Dandridge, 1 C. & K. 445.

26 T. R. 388, per Lawrence, J.; Smedley v. Hill, 2 W. BL 1105. In
the United States, provision is made by statutes, for the settlement of insol-
vent estates, by a liquidation of all the claims, and a pro rata distribution of
the assets. The application of the plea plene administravit, to such cases,
is thus stated by Mr. Justice Story: “It does not appear to me, that upon
principle, any special plea of plene administravit is necessary, where the
assets have been in fact paid according to the directions of the statute of
insolvency ; for if the assets are rightfully applied, the mode is matter of
evidence and not of pleading. A special plene administravit can only be
necessary, where the administrator either admits assets to a limited extent,
or he sets up a right of retainer for the payment of other debts, to which
they are legally appropriated, or he has paid debts of an inferior nature,
without notice of the plaintiff’s claim. And so is the doctrine of the Com-
mon Law, according to the better authorities. In the next place, it seems
to me that there may be cases, where the estate may be insolvent, and yet
the administrator would not be bound to procure a commission, and proceed
under the statute of insolvency. If, for example, the assets were less than
the privileged or priority debts, a commission of insolvency would be utterly
useless to the other creditors; and surely the law would not force the ad-
ministrator to nugatory acts. In such a case, it seems to me that a general
plene administravit would be good, if the administrator had in fact applied
the assets in discharge of such debts. If he had not so applied them, then
he might specially plead these debts and no assets ultra. Other cases may
be put of an analogous nature, and unless some stubborn authority could be
shown, founded in our local jurisprudence, (and none such has been pro-
duced,) I should not be bold enough to overrule what I consider a most
salutary doctrine of the Common Law. Judgments, bonds, and some other
debts at the Common Law are privileged debts, and are entitled to a priority
of payment. And yet, if the administrator have no notice, either actual or
constructive, of such privileged debts, he will be justified in paying debts
PART IV.] EXECUTORS AND ADMINISTRATORS. 381

have been paid before the commencement of the action, or if |
debts of a superior degree have been paid while the action
was pending, this also may be shown under a special plea;
but in the former case, it must be averred and proved that
‘the payment was made without notice of the plaintiff’s
claim. By the Common Law, an executor or administrator
will be presumed to have notice of judgments of a court of
record, and all other debts of record; but of other debts,
actual notice must be proved? “Where plene administravit
is pleaded to an action of debt on bond, the defendant must
prove that the debts paid were due by bonds sealed and
delivered, or, that they were of higher degree, and entitled to
priority of payment; but where this issue arises in an action
for a debt due by simple contract, it is sufficient to prove the
prior payment of a debt of any sort, without proof of the
instrument by which it was secured; for it is a good pay-
ment in the course of administration? In either case, the
creditor is a competent witness, to prove both the existence
of his debt and the payment of the money ;* but where the
debt is said to have been due by bond, which has been de-
stroyed, it has been thought that the attesting witnesses, or

 

of an inferior nature, provided a reasonable time has elapsed after the de-
cease of the intestate. And in principle there cannot be any just distinc-
tion, whether such payment be voluntary or compulsive. But in such case,
if he be afterwards sued for such privileged debt, he cannot plead plene ad-
ministravit, generally, but is bound to aver, that he had fully administered,
before notice of such debt.” United States v. Hoar, 2 Mason, 317, 318.

1 Sawyer v. Mercer, 1 T. R. 690; Anon. 1 Salk. 153; Toller, Ex’r, 269.
But where the executor, more than a year after the decease of the testator,
had paid all the debts and legacies, and paid over the remainder of the estate
to the residuary legatee, without notice of any other claim, this was held
admissible and sufficient, under the plene administravit. Gov. &c. of Chel-
sea Waterworks v. Cowper, 1 Esp. 275, per Ld. Kenyon.

2 1 Com. Dig. 352, tit. Administration, C.2; Dyer, 32 a. By statute 4 &
5 W. & M.c. 20, all judgments not docketed, or abstracted and entered in
a book kept for that purpose, are reduced to the footing of simple contract
debts. Hickey v. Hayter, 6 T. R. 384; Toller, Ex’r, 268.

3 Bull. N. P. 143; Saunderson v. Nicholl, 1 Show. 81.

4 Bull. N. P. 143; Kingston v. Gray, 1 Ld. Raym. 745.
382 LAW OF EVIDENCE. [PART Iv.

some other evidence of the existence of the bond, ought to
be produced.}

§ 349. Under this issue, the defendant, by the Common
Law, may in certain cases give in evidence a retainer of
assets to the amount of a debt of the same or a higher degree,
due to himself ;? or, to the amount of the expenses of admin-
istration, for which fie has made himself personally respon-
sible ;8 or, to the amount of debts of the same or a higher
degree, which he has paid out of his own money, before the
commencernent of the action Butif the payment was made
to a co-executor, to be paid over to the plaintiff, which he
has not done, it is no defence; the receiver being in that
case made the agent of the defendant himself, and not of the
plaintiff’ But in most of the United States, the right of an
executor or administrator to retain for a debt due to himself,
or for moneys which he has paid for expenses of administra-
tion, has been qualified by statutes, not necessary here to be
stated ; so that, ordinarily, he cannot retain for his own debt,
until it has been proved and allowed in the Court where the
estate is settled, and then only under its decree, upon the
settlement and allowance of his account of administration.

§ 350. In order to sustain the claim of retainer, it is neces-
sary for the party to show that he has been rightfully consti-
tuted executor or administrator; and for this cause, as well
as to prevent strife among creditors, an executor de son tort
cannot retain for his own debt, even though it be of higher
degree, unless he has since duly received letters of adminis-
tration. But under the plea of plene administravit, he may
show that he has paid other debts, in their order; or that,

 

1 Gillies v. Smither, 2 Stark. 528; Ante, Vol. 1, § 84, note 2, ad calc.

2 Bull. N. P. 140, 141; Co. Lit. 288 a; Plumer v. Marchant, 3 Burr.
1380; 1 Saund. 833, note (8), by Williams.

3 Gillies v. Smither, 2 Stark. 528.

4 Bull. N. P. 140; Smedley v. Hill, 2 W. Bl. 1105.

5 Crosse v. Smith, 7 East, 246, 258.
PART IV.] EXECUTORS AND ADMINISTRATORS. 383

before action brought, he had delivered all the assets in his
hands to the rightful executor or administrator.

§ 351. If the defendant would give in evidence the exist-
ence of outstanding debts of a higher nature, entitled on that
account to be preferred, but not yet paid, he can do this only
under a special plea. If the debts are due. by obligations
already forfeited, the penalties are ordinarily to be taken as
the amount of the debt; unless, by a proper replication, it is
made to appear that the penalty is kept on foot by fraud.
But if the obligation is not yet forfeited, the sum in the con-
dition is to be regarded as the true debt, and assets can be
retained only to that amount; for the executor, by payment
‘of this sum, may save the penalty ; and if he does not, it will
be a devastavit2, In these cases, when the defendant seeks
to retain the assets in his hands to meet debts of a higher
nature, whether by bond or judgment, though the plea, in
point of form, contains an averment of the precise value
of the goods in his hands, yet the substance of the issue
is, that the value of the goods, whatever it be, is not greater
than the amount actually due on the bond or judgment?
And where an outstanding judgment is pleaded, with a
replication of per fraudem, the judgment creditor is not a
competent witness for the defendant to disprove the fraud.*
If several judgments or debts are pleaded, and the plea is

 

@

1 Bull. N. P. 148; Chitty’s Prec. p. 301; Curtis v. Vernon, 3 T. R. 587,
590; Anon. 1 Salk. 313; Oxenham». Clapp, 3 B. & Ad. 309.

2 United States v. Hoar, 2 Mason, 311; Bull. N. P. 141; 1 Saund. 333,
n. (7), (8), by Williams; Id. 334, n. (9); Parker v. Atfield, 1 Salk. 311.
If a bond creditor, after forfeiture, would have taken less than the penalty,
and the executor had assets to the amount required, which he did not pay, it
is evidence of fraud. Ibid. And if a judgment is confessed for more than
is actually due, this is prima facie evidence of fraud; but the defendant
may rebut it by proof that it was done by mistake. Pease v. Naylor, 5
T. R. 80.

3 Moon v. Andrews, Hob. 133; 1 Saund. 833, n. (7), by Williams,

4 Campion v. Bentley, 1 Esp. 343.
384 LAW OF EVIDENCE. [PART IV.

falsified as to any of them, the plaintiff will be entitled to
recover.

§ 352. Where there are several executors or administrators,
an admission by one of them that the debt is still due, is held
not sufficient to entertain the plaintiff to recover against the
others; though it may be properly admissible, as a link in
the chain of testimony against them. Nor is such admis-
sion by one, sufficient to take the case out of the Statute of
Limitations as to all.

 

1 Ibid. ; Bull. N. P. 142; Parker v. Atfield, 1 Salk. 311; 1 Lord Raym.
678. But see 1 Saund. 347, n. (1), by Williams.

2 James v. Hackley, 15 Johns. 277; Forsyth v. Ganson, 5 Wend. 558;
Hammon »v. Huntley, 4 Cowen, 493.

3 Tullock v. Dunn, Ry. & M.416; Ante, Vol.1,§ 176. But see Hammon
v. Huntley, 4 Cowen, 493.
PART IV.] HEIR. 385

HETR.

_ § 353. Tae rules of evidence, applicable to the proof of
pedigree in general, having been considered in the preceding
volume,! the present title will be confined to the evidence of
heirship, where this fact is particularly put in issue, as the
foundation of a claim of right, or of liability.

§354. Where A claims as the heir of B, it will be neces-
sary to establish, first, affirmatively, their relationship through
a common ancestor; and secondly, negatively, that no other
descendant from the same ancestor exists, to impede the de-
scent to A. Thus, in ejectment, where it was incumbent on
the lessor of the plaintiff to prove that a younger brother of
the person last seised, from whom he deduced his title, was
dead, without issue ; the testimony of an elderly lady, a mem-
ber of the family, that the younger brother had many years
before gone abroad when a young man, and according to re-
pute in the family had died abroad, and that she never had
heard in the family of his having been married, was held
prima facie evidence of his having died without issue. But
where the death only is proved in such case, without some
negative proof of the existence of issue, it is not sufficient ;
the plaintiff being bound to remove every possibility of title
in another, before he can recover against the person in pos-
session.2> Thus also, if it were requisite to establish the title
of A, as heir at law to his cousin-german, B, it would be
necessary to prove the marriage and death of their common
grandparents, and of their respective parents, through whom
the title was deduced ; that these were the legitimate children

 

1 See ante, Vol. 1, § 103-107, 131-134.

2 Doe v. Griffin, 15 East, 293.

3 Richards v. Richards, 15 East, 293, note.
VOL. Il. 33
386 LAW OF EVIDENCE. [PART IV.

of the common ancestor; and that A and B were also the
lawful issue of their parents; with evidence to show that no
other issue existed, who would take the preference to A.
But in charging one as heir, general evidence of heirship will
be sufficient to be adduced on the part of the plaintiff, it
being a matter more peculiarly within the defendant’s own
knowledge Thus, if he is in possession of the property of
the deceased, or has received rents from his tenants, it is to
be presumed that he claims them as heir.

§ 355. After a long lapse of time since the death of one
who might have been entitled without any adverse claim, it
may be presumed that he died without issue® The fact of
the death of a party, but not the time of it, will be presumed
after the expiration of seven years from the time when he
was last known to be living And it may be inferred from
the grant of letters of administration on his estate, in the
absence of any controlling circumstances; since it is not
the course to grant administration, without some evidence of
the death.

§356. The liability of an heir generally arises upon the
obligation of the ancestor by deed, in which the heir is ex-
pressly bound. He is liable at Common Law, to an action
of debt on the bond of his ancestors, if specially named ; °
and in England, by statute, to an action of covenant. The
like remedies have also been given against devisees, by stat-
utes. But the remedy in effect is rather against the lands of
the obligor, in the hands of the heir, than against the person
of the heir; and it cannot be extended beyond the value of the

 

1 See ante, Vol. 1, § 79.

2 Derisley v. Custance, 4 T. R. “75.

3 Doe v. Wolley, 8 B. & C. 22; 3 C. & P. 402, S. C.

4 Doe v. Jesson, 6 East, 85, per Ld. Ellenborough; Ante, Vol. 1, § 41.
The time of the death is to be inferred from the circumstances. Doe v.
Nepean, 5 B. & Ad. 86; Rust v. Baker, 8 Sim. 443; Supra, tit. Dears.

5 See ante, Vol. 1,§ 550; Succession of Hamblin, 3 Rob. (Louis.) R. 130.

6 Co, Lit. 209 a.
PART Iy.] HEIR. 387

assets descended, unless the heir, by neglecting to show the
certainty of them, should render himself personally liable.'
For if he should plead that he has nothing by descent, and
the Jury should find that he has anything, however small in
amount, the plea will be falsified, and the plaintiff will be
entitled to a general judgment for his entire debt; whereas if
he should confess the debt, and show the amount of the assets
in his hands, he will be answerable only to this amount.

§ 357. In the United States, the entire property of the de-
ceased, real as well as personal, constitutes a trust fund for
the payment of his debts. The modes in which this trust is
carried into effect, are various, and are usually prescribed by
statutes ; but in some States, the forms of remedy are left at
Common Law. The general feature, that the personalty
must first be resorted to, is uniformly preserved; and in
several of the States, the executor or administrator is em-.
powered by license from the Courts, after exhausting the
personal assets, to enter upon and sell the real estate, whether
devised or not, to an amount sufficient to discharge the debts.
Ordinarily, therefore, in the first instance, the creditor must
resort to the personal representative, and not to the heir, for
the payment of the debt; unless the cause of action, as in
the case of a covenant of warranty, not previously broken,
did not accrue, until all remedy against the executor or
administrator was barred by the Statute of Limitations.

§ 358. Wheréver the executor or administrator, by the
statutes alluded to, is authorized to apply to the Courts for
leave to sell the land of the deceased, for the payment of his

 

' 2 Saund. 7, note (4), by Williams.

2 Tbid.; Plowd. 440; 2 Roll. Abr. 71; Buckley v. Nightingale, 1 Stra.
665. The plea of non est factum, if found against the heir, is not such a false
plea as will render him liable de bonis propriis. 2 Saund. 7, note (4) ;
Jackson v. Rosevelt, 18 Johns. 97.

34 Kent, Comm, 421, 422; Hutchinson »v. Stiles, 3 N. Hamp. 404 ; Web-
ber v. Webber, 6 Greenl. 127; Royce v. Burrell, 12 Mass. 395; Hall v.
Bumstead, 20 Pick. 2; [Roe v. Swazey, 10 Barb. 247.]
388 LAW OF EVIDENCE. [PART IV.

debts, the heir takes the land subject to that right and con-
tingency ; and when the land is thus sold, the title of the
heir is defeated, and he has nothing by descent, and may
well plead this plea in bar of an action, brought against him
by a creditor, upon the bond of his ancestor.!

§ 359. The plea of riens per descent admits the obligation ;
but the proof of assets is incumbent on the plaintiff. And
the substance of this issue is, whether the defendant had
assets or not. The place, therefore, is not material to be
proved; nor is it material whether the land was devised by
the ancestor, or not, nor whether it was charged with the
payment of debts or legacies, or not, provided the heir takes
the same estate which would have descended to him without
the will, its nature and quality not being altered by the
devise.? But it is material for the plaintiff, where he declares

 

1 Covel v. Weston, 20 Johns. 414. And see Gibson v. Farley, 16 Mass.
280. [Where the land of one deceased is taken for a railroad, the heir and
not the administrator, is entitled to the damages for such taking and to
prosecute for the recovery thereof, although the administrator has previously
represented the estate to be insolvent, and afterwards obtains a license to
sell the intestate’s real estate for the payment of debts. Boynton v. The
Peterboro’, &c. R. Road, 4 Cush. 467? The case was this: Oliver Page
died intestate, seised of real estate, leaving one daughter, his heir at law.
His whole real and personal estate was insufficient to pay his debts. His
administrator obtained a license to sell the real estate. After the death of
the intestate, but before the license was obtained, the railroad corporation
filed the location of their road, by which ‘a part of said Peal estate was taken
for the railroad. The question was whether the heir or the administrator
should have the damages for the land thus taken, and the Court held, that,
as the right to damages for land taken for public use accrues at the time of
taking, and as in the case of railroads that time is prim@ facie, and in the
absence of other proof, the time of filing the location, and as the heir at law
was seised and possessed of the estate taken at the time of the taking, sub-
ject only to be defeated by a sale, not then made, nor authorized and li-
censed by competent authority to be made, the heir was entitled to the
damages. Ibid. See also Wilson v. Wilson, 13 Barb. 252; Vansyckle v.
Richardson, 18 Ill. 171.] ;

2 Bull. N. P.175; Allam v. Heber, 2 Stra. 1270; [Ellis v. Paige, 7 Cush.
161; Gilpin v. Hollingsworth, 3 Md. 190; Buckley v. Buckley, 11 Barb.
43.]
PART IV.] HEIR. 889

against the defendant as the immediate heir of the obligor,
to show that the assets came to the defendant as heir of the
obligor, and not of another person. For where the obligor
died seised of the lands, leaving issue, and the issue died -
without issue, whereupon the lands descended to the defend-
ant as heir, not of the obligor, but of the obligor’s.son, the
plea of riens per descent directly from the obligor, was held
maintained.'| And where the ancestor of the obligor died
seised of a reversion expectant on a lease for years, leaving
the obligor his heir, but no rent was paid to the obligor, the
lands being supposed to have passed to a stranger by devise
from the ancestor; yet it was held, that the possession of
the tenant was in law the possession of the heir, and so the
obligor was seised in fact, and the land became assets in the
hands of his heir, whose plea of riens per descent from the
obligor was therefore falsified? But if the intermediate heir
was never seised, his successor in the same line of descent
would take as heir to the obligor, who was last seised, and
be liable accordingly. Under this plea, by the Common
Law, the heir might show that, prior to the commencement
of the suit, he had in good faith aliened the lands; but this
has been changed by statute.!

§ 360. In proof of assets, it will be sufficient for the plain-
tiff to show that the defendant is entitled, as heir, to a rever-
sion in fee. after a mortgage or lease for years; or to a
reversion expectant upon an estate tail, provided the limita-
tion in tail has expired, and the reversion has vested in pos-
session, in the heir. Buta reversion after a. mortgage in fee
is not assets at law, though it is in Equity.6 A reversion

 

1 Jenks’s case, Cro. Car. 151; Kellow v. Rowden, 3 Mod. 253; Chappell
v. Lee, 3 Mod. 256; Duke v. Spring, 2 Roll. Abr. 709, pl. 62.

2 Bushby v. Dixon, 3 B. & C. 298.

3 Kellow v. Rowden, 2 Mod. 253; 1 Show. 244, S. C.

4 2 Saund. 7, n. (4), by Williams; Bull. N. P. 175; [Ticknor v. Harris,
14 N. H. 272.)

5 2 Saund. 7, n. (4), by Williams; Plunkett v. Benson, 2 Atk. 294;
Bushby v. Dixon, 3 B. & C. 298.

33 *
390 LAW OF EVIDENCE. [PART IV.

expectant upon an estate for life is also assets ; but it must be
pleaded specially.

§ 361. Whether lands lying in a foreign State or country,
can be regarded as assets, so as to charge the heir, is a point
not perfectly clear. In one Américan case it has been de-
cided that they were not. No reasons were given for the
decision ; but cogent arguments were urged by the learned
counsel for the creditor, showing that upon principle, as well
as by analogy of law, the heir was chargeable.”

 

1 Bull. N. P. 176; Kellow v. Rowden, 3 Mod. 253; Carth. 126, 8. C.;
Anon. Dyer, 373 b. [Where a person makes a deed which conveys no
estate, the land descends to his heir, who takes it unconditionally, and he is
not obliged to restore the consideration received by his ancestor. Flanders
v. Davis, 19 N. H. 139.]

2 Austin v. Gage, 9 Mass. 395. See Dowdale’s case, 6 Co. 46; Covell
v. Weston, 20 Johns. 414. The reference in 1 Vern. 419, to Evans »,
Ascough, Latch, 234, that lands in Ireland were assets against the heir in
England, but that lands in Scotland were not, is erroneous; no such point
being mentioned in that case, which was only a question of chancery juris-
diction. The mistake has arisen from a misprint of and for as. [Where
land in Ohio descended to a resident in Kentucky, and it did not appear
that by the laws of Ohio a descent of lands to an heir were assets which
rendered him liable to the debts of his ancestor, the heir was held not to be
liable to a creditor of his ancestor for the lands so descended as assets.
Brown v. Brashford, 11 B. Mon. 67.]
PART IY.] “INFANCY, 391

INFANCY.

§ 362. Inrancy is a personal privilege or exception, to be
taken advantage of only by the person himself; and the
burden of proof rests on him alone, even though the issue is
upon a ratification of his contract, after he came of age.!
The trial by Common Law, is either upon inspection by
the Court, or in the ordinary manner of other facts, by the
Jury; but in the United States the latter course only is
practised.”

§ 363. The fact of the party’s age may be proved by the
testimony of persons acquainted with him from his birth; or,
by proof of his own admissions; for these are receivable,
even in criminal cases, the infant being regarded as compe-
tent to confess the truth in fact, though he may lack suffi-
cient discretion to make a valid contract. ‘An entry of his
baptism in the Register, is not of itself proof of his age; but
if it is shown to have been made on the information of the
parents, or others similarly interested, it may be admitted as
a declaration by them; and in the Ecclesiastical Courts, it
is strong adminicular evidence of minority. If the action

 

1 Borthwick v. Carruthers, 1 T. R. 648; Leader v. Barry, 1 Esp. 253;
Jeune v. Ward, 2 Stark. 326.

2 Sliver ». Shelback, 1 Dall. 165.

3 Haile v. Lillie, 3 Hill, N. Y. Rep. 149; McCoon v. Smith, Id. 147;
Mather v. Clark, 2 Aikens, 209. But his admissions should be weighed
cautiously, with reference to his age and understanding: The State v.
Guild, 5 Halst. 163, 189, 190.

4 Wihen v. Law, 3 Stark. 63; Burghart v. Angerstein, 6 C. & P. 690;
Agg v. Davies, 2 Phil. 345; Jeune v. Ward, 2 Stark. 326; Rex v. Clap-
ham, 4 C. & P. 29. In the United States, where births are required by
law to be recorded, a copy of the record is usually received as sufficient |
evidence of the facts it recites, which it was the officer’s duty to record.
892 LAW OF EVIDENCE. [PART IV.

is against the acceptor of a bill, the defendant upon the issue
of infancy, must distinctly prove not only his real age, but
also the day on which he accepted the bill; unless he is
proved to have been under age at the commencement of the
action ; for otherwise, it does not appear that he was an
infant at the time he entered into the contract, the date of
the bill not being even presumptive evidence of the time of
acceptance.

§ 364. The defence of infancy, to an action of assumpsit,
is avoided by showing either, (1.) that the consideration of
the promise was necessaries furnished to him; or, (2.) a rati-
fication of the contract, by a new promise after he came of
age Upon the issue of necessaries or not, when specially
pleaded, no evidence of minority is requisite, it being ad-
mitted by the course of pleading. The burden of proving
the issue of necessaries is on the plaintiff.

§ 365. Necessaries are such things as aré useful and suit-
able to the party’s state and condition in life, and not merely
such as are requisite for bare subsistence. And of this the
Jury are to judge, under the advice and control of the Court.

 

1 Israel v. Argent, 1 Chitty’s Prec. 314, note (b); Blyth v. Archbold,
Ibid,

2 [It is not a sufficient answer to a plea of infancy in an action on a con-
| tract, that the infant fraudulently represented himself to be of full age.
' Merriam v. Cunningham, 11 Cush. 40; Burley v. Russell, 10 N. H. 184.]

3 Peters v. Fleming, 6 M. & W. 42; Burghart v. Angerstein, 6 C. & P.
690; Wharton v. Mackenzie, 5 Ad. & El. 606, 611, N. S. [“ It (necessaries)
is a flexible and not an absolute term, having relation to the infant’s con-
dition in life, to the habits and pursuits of the place in which, and the people
among whom, he lives, and to the changes in those habits and pursuits
occurring in the progress of society.” By Thomas, J. Breed v. Judd, 1
Gray, 458.]

4 Jbid.; Harrison v. Fane, 4 Jur. 508; 1 Scott, N. R. 287; 1M. & G.
550, S. C.; Brayshaw v. Eaton, 5 Bing. N. C. 281; Peters v. Fleming,
6M. & W. 42; Stanton v. Wilson, 3 Day, 57; Beeler v. Young, 1 Bibb,
519. If upon the trial of this issue, any part of the articles are proved to
be necessaries, the evidence ought to be left to the Jury. Maddox v. Miller,
1M. & S. 738. [Itis the province of the Court to determine whether the
PART Iv.] INFANCY. 393

It has been held, that money lent to an infant, to supply him-
self with necessaries, is not recoverable ;! but if the neces-
saries were previously specified and were actually purchased,
it seems that an action for the goods, as furnished by the
plaintiff through the agency of the infant himself, may be
maintained? And payments of wages to an infant, in order
to purchase necessaries, have been held valid payments?
Regimentals for an infant member of a volunteer military
company ;* and a livery for a minor captain’s servant ;° and
a horse for an infant nearly of age, advised by his physician
to take exercise on horseback; have been held necessary.®

 

articles sued for are within the class of necessaries, and it.is the proper
duty of the Jury to pass upon the questions of the quantity, quality, and
their adaptation to the condition and wants of the infant. Merriam v. Cun-
ningham, 11 Cush. 40. See Swift v. Bennett, 10 Ib. 437.]

1 Probart v. Knouth, 3 Esp. 472, n.; Bull. N. P. 154. An infant is liable
for such goods furnished to him to trade with, as were consumed as neces-
saries in his own family. Tuberville v. Whitehouse, 1 C. & P. 94.

2 Ellis v. Ellis, 1 Ld. Raym. 344; 3 Salk. 197, pl. 11; 12 Mod. 197;
Marlow v. Pitfield, 1 P. Wms. 558; Earle v. Peale, 1 Salk. 386; Crantz v.
Gill, 2 Esp. 472, note (1), by Mr. Day; Randall v. Sweet, 1 Denio, 460,
per Bronson, J. It has been recently decided in New York, that money
lent for the purchase of necessaries, and actually so applied, may be re-
covered in an action for money lent. Smith v. Oliphant, 2 Sandf. S. C. R.
306. Money advanced to procure his liberation from lawful arrest on civil
process, is necessary. Clarke v. Leslie, 5 Esp. 38. An infant widow is
bound by her contract for the expenses of ,her husband’s funeral, he having
left no assets. Chappel v. Cooper, 13 M. & W. 252.”

3 Hedgley,v. Holt, 4 C.& P. 104. [An infant is liable for money paid at
his request by the plaintiff to a third person for necessaries furnished the
infant. Swift v. Bennett, 10 Cush. 436. If one who is a surety on a note
given by an infant for necessaries pays the money, the infant must reimburse
him. Conn v. Coburn, 7 N. H. 368. Where a negotiable note is given by
an infant, the promisee, if he brings an action thereon, may show that it
was given in whole, or in part, for necessaries, and may recover thereon as
much as the necessaries for which it was given were really worth. Tarle v.
Reed, 10 Met. 387.]

4 Coates v. Wilson, 5 Esp. 152.

5 Hands v. Slaney, 8 T. R. 578.

6 Hart v. Prater, 1 Jur. 623. But generally a horse is not necessary.
Rainwater v. Durham, 2 Nott & McC. 524.
894 LAW OF EVIDENCE. , [PART Iv.

A chronometer, ordered by a lieutenant in the navy, has been
held otherwise.!

§ 866. The evidence of necessaries may be rebutted by
proof that the party lived under the roof of his parent, who
provided him with such things as in his judgment appeared
proper ;? or, that he had already supplied himself with the
like necessaries, from another quarter ;° or, that a competent
allowance was made to him by his guardian for his support; 4
or, that he was properly supplied by his friends. It is ordi-
narily incumbent on the tradesman, before he trusts an in-
fant for goods apparéntly necessary for him, to inquire
whether competent provision has not already been made
for him by others;® but there is no inflexible rule of law,
rendering inquiries into the infant’s situation and resources
absolutely indispensable, as a condition precedent to the
right to recover.’ And the necessity for any inquiry, where
otherwise it would be incumbent on the tradesman, may be
done away by the conduct of the other parties; as, for ex-

 

1 Berolles v. Ramsay, Holt’s Cas. 77. And see Charters v. Bayntum, 7
C. & P.52. [An infantis not liable for grain furnished for horses owned by
a firm of which he was a member, though the horses were employed in the
usual business of the firm, and though he was emancipated by his father.
- Mason v. Wright, 13 Met. 806. Nor can he be held to pay for repairs put
upon his dwelling-house under a contract made by him, although the repairs
were necessary to prevent immediate and serious injury to the house. Tup-
per v. Cadwell, 12 Met. 559. The board of four horses for six months, the
principal use of which by the infant was in the business of a hackman, is
not within the class of necessaries, although the horses were occasionally
used to carry his family out to ride. Merriam v. Cunningham, 11 Cush. 40.]

2 Borrinsale v. Greville, 1 Selw. N. P. 128; Bainbridge v. Pickering, 2 W.
Bl. 1825; Cook v. Deaton, 8 C. & P. 114.

3 Burghart v. Angerstein, 6 C. & P. 690.

4 Mortara v. Hall, 6 Sim. 465; Burghart v. Hall, 4 M. & W. 727.

5 Story v. Pery, 4 C. & P. 526; Angell v. McLellan, 16 Mass. 313 Wail-
ing v. Toll, 9 Johns. 141.

6 Ford». Fothergill, Peake’s Cas. 229; 1 Esp. 211, S. C.; Cook v. Deaton,
8 C0. & P. 114.

7 Brayshaw v. Eaton, 5 Bing. N. C. 231; 7 Scott, 183, S. C.; 8 Jurist,
222.
PART Iv.] INFANCY. 395

ample, if the goods were delivered with the knowledge of the
parent, and without objection from him.!

§ 367. Upon the issue of a subsequent ratification of the
contract by a new promise, the burden of proof is on the
plaintiff, the fact of infancy being admitted by the pleadings.
But proof of the promise is sufficient, without proof that the
party was then of full age The contracts and acts of an
infant are in general voidable, and capable of confirmation
when he comes of age; those alone being treated as abso-
lutely void, which are certainly and in their nature prejudi-
cial to his interest. Thus, his negotiable promissory note,
though formerly considered void, is now held voidable only ;*
and his statement of an account, is also now held capable of
ratification after he comes of age.t There is, however, a dis-
tinction between those acts and words which are necessary
to ratify an executory contract, and those which are sufficient
to ratify an executed contract. In the latter case, any act,
amounting to an explicit acknowledgment of liability, will
operate as a ratification; as, in the case of a purchase of
land or goods, if, after coming of age, he continues to hold
the property and treat it as ni own.’ But, in order to ratify

 

1 Dalton v. Gib, 5 Bing. N. C. 198; 7 Scott, 117, 8. C.; 3 Jur. 43.

2 Hartley v. Wharton, 11 Ad. & El. 934; 3 P. & D. 539, 8. C.; Borth-
wick v. Carruthers, 1 T. R. 648.

3 Goodsell v. Myers, 3 Wend. 479; Reed v. Batchelder, 1 “Met. 559; Law-
son v. Lovejoy, 8 Greenl. 405; Baker v. Jewett, 1 Burton’s R. (New Bruns.)
p- 85; Story on Contr. § 38; "Boody v. McKenney, 10 Shepl. 517.

4 Williams v. Moor, 11 M. & W. 256, 265. An infant’s bond has been
held voidable only, and not void. Conroe v. Birdsall, 1 Johns. Cas. 1275
Fant v. Cathcart, 8 Ala. 725. But see contra, Baylis v. Dineley, 3 M. & S.
477; Hunter v. Agnew, 1 Fox & Smith, 15.

5 Hubbard v. Cummings, 1 Greenl. 11; Lawson v. Lovejoy, 8 Greenl.
405; Dana v. Coombs, 6 Greenl. 89; Chitty on Contr. p. 125 a; 1 Roll. Abr.
731, 1.45; Evelyn v. Chichester, 8 Burr. 1719; Tucker v. Moreland, 10 Pet.
75, 76; Jackson v. Carpenter, 11 Johns. 542; Boston Bank v. Chamberlain,
15 Mass. 220; Boyden v. Boyden, 9 Met. 519; Armfield v. Tate, 7 Ired.
258; Van Dorens v. Everett, 2 South. 460; Boody v. McKenney, 10 Shepl.
517. This case was assumpsit upon a promissory note, given by an infant
for personal property, which, after coming of age, he had sold; and he was
396 LAW OF EVIDENCE. [PART Iv.

an executory agreement made during infancy, there must be
not only an acknowledgment of liability, but an express con-

 

held liable, as having thereby affirmed the contract. Shepley, J., in deliv-
ering the judgment of the Court, reconciled the apparently conflicting
decisions upon the liability of an infant on his contracts, by reference to the
different situations and circumstances in which he was placed, in regard to
the subject-matter; classifying them as follows : —

“1, When he has made a conveyance of real estate during infancy, and
would affirm or disaffirm it, after he becomes of age. In such case, the mere
acquiescence for years to disaflirm it,. affords no proof of a ratification.
There must be some positive and clear act performed for that purpose. The

reason is, that, by his silent acquiescence, he occasions no injury to other

| persons, and secures no benefits or new rights to himself. There is nothing
to urge him, as a duty towards others, to act speedily. Language, appro-
priate.in other cases, requiring him to act within a reasonable time, would
become inappropriate here. He may, therefore, after years of acquiescence,
by an entry, or by a conveyance of the estate to another person, disaflirm
and avoid the conveyance made during his infancy. Jackson v. Carpenter,
11 Johns. 589; Curtis c. Patton, 11 8. & R. 311; Tucker v. Moreland, 10
Pet. 58.

“2. When, during infancy, he has purchased real estate, or has taken a
lease of it subject to the payment of a rent, or has granted a lease of it upon
payment of a rent. In such cases, it is obvious, when he becomes of age,
that he is under a necessity, or that common justice imposes it upon-him as

_a duty, to make his election within a reasonable time. He cannot enjoy the
estate, after he becomes of age, for years, and then disaffirm the purchase,
and refuse to pay for it, or claim the consideration paid. Or thus enjoy the
‘leased estate, and then avoid payment of the stipulated rent. Or receive
rént on the lease granted, and then disaffirm the lease. When he will
receive a benefit by silent acquiescence, he must make his election within a
reasonable time, after he arrives at full age, or the benefits so received will
be satisfactory proof of a ratification. Ketsey’s case, Cro. Jac. 820; Evelyn
vy. Chichester, 3 Burr. 1765; Hubbard r. Cummings, 1 Greenl. 11; Dana v.
Coombs, 6 Greenl. 89; Barnaby v. Barnaby, 1 Pick. 221; Kilne v. Beebe,
6 Conn. 494. In the case of Benham v. Bishop, 9 Conn. 380, it appeared,
that the defendant and his mother and sisters were in possession and owned
land in common, and that defendant, while an infant, made his note to
another sister for a conveyance to him of her undivided share of the same
estate, and that they continued to occupy the land in the same manner sev-
eral years after he became of age, and it was decided not to amount to a
ratification of the note. This case can only be regarded as correctly decided
by considering the defendant as having occupied only by virtue of his own
previous title as a tenant in common.

“3. When he has, during his infancy, sold and delivered personal prop-
PART IV.] INFANCY. 397

firmation or new promise, voluntarily and deliberately made
by the infant, upon his coming of age, and with the knowl-

 

erty. When the contract was executed by his receiving payment, it is
obvious, that he can receive no benefit by acquiescence ; and it alone does
not confirm the contract. When the contract remains unexecuted, and he
holds a bill or note taken in payment for the property, if he should collect
or receive the money due upon it, or any part of it, that would affirm the
contract. Should he disaffirm the contract and reclaim the property, the
bill or note would become invalid. He cannot disaffirm it until after he
becomes of age. And if he then does it, there are cases, which assert,
when the contract has become executed, that he must restore the consid-
eration received. Badger v. Phinney, 15 Mass. R. 363; Roof v. Stafford,
7 Cowen, 179.

«4, When he has purchased and received personal property during in-
fancy. When the contract has been executed by a payment of the price,
if he would disaffirm it, he should restore the property received. When
the contract remains unexecuted, the purchase having been made upon
credit, he may avoid the contract by plea during infancy, or after he be-
comes of age, before he has affirmed it. It has been asserted in such case,
that he should be held to refund the consideration received for the contract
avoided. Reeve’s Dom. Rel. 243.. He admits, however, that the current
of English authorities is otherwise. If he had received property during
infancy, and had spent, consumed, wasted, or destroyed it; to require him to ;
restore it, or the value of it, upon avoiding the contract, would be to deprive
him of the very protection which it is the policy of the law to afford him. |
There might be more ground to contend for the right to reclaim specifi¢
articles remaining in his hands unchanged at the time of the avoidance of
the contract. When he continues to retain the specific property, or any
part of it, after he becomes of fall age, it becomes his duty within a reason-
able time to make his-election. If su¢éh were not the rule, he might con-
tinue to use for years a valuable machine until nearly worn out, and thus
derive benefit from it, and yet avoid the contract and refuse to pay for it.
And when after a reasonable time he continues to enjoy the use of the prop-
erty, and then sells it, or any part of it, and receives the money for it, he
oust be considered as having elected to affirm the contract; and he cannot
afterwards avoid payment of the consideration. This, as before shown, is
the well-settled rule in relation to real estate purchased or leased; and the
principles applied in those decisions, appear to be equally applicable here.
Such was the decision in Lawson v. Lovejoy, 8 Greenl. 405; Chesire v.
Barrett, 4 McCord, 241; Dennison v. Boyd, 1 Dana, 45; Delano v. Blake,
11 Wend. 85.” See 10 Shepl. 523-526. See also 1 Hare & Wallace’s Am.
Leading Cases, p. 109-115, where the cases on this subject are cited and
classified. [But such acts must be voluntary on the part of the minor, and
must make manifest his intention to keep the property when he has the

VOL. II. 34
898 LAW OF EVIDENCE. [PART Iv.

edge that he is not legally liable. An explicit acknowledg-
ment of indebtment, whether in terms, or by a partial pay-
ment, is not alone sufficient; for he may refuse to pay a
debt which he admits to be due. But an express confirma-
tion of the agreement, as still obligatory, is sufficient! And
if the promise be express to pay when he is able, the plaintiff
must prove the defendant’s ability to pay, or, at least, that
ostensibly he is so; but he is not bound to prove that the
payment can be made without inconvenience.2 The new
promise must in all cases, be shown to have been made prior
to the commencement of the action?

§ 368. Infancy is no defence to an action ex delicto ; but an
action in that form cannot be maintained, where the founda-

 

power to keep it or relinquish it at his election. Thus where goods, not
necessaries, were bought by an infant, and the vendor, three days before he
became of age, brought his action against the infant for the price, and
attached the goods on the writ, and the goods remained in the officer’s hands
up to, and at, the time of the trial of the action, and the defendant gave no
notice after he became of age to the plaintiff, of his intention not to be
bound by the contract of sale, it was held to be no ratification of the con-
tract of sale. Smith v. Kelley, 13 Met. 309; Tibbets v. Gerrish, 5 Foster,

(N. H.) 41; Stokes v. Brown, 4 Chand. (Wis.) 89. The special contract
of a minor to labor is ratified by his continuance in it for a month after
he comes of age, and he cannot afterwards avoid it. Forsyth v. Hast-
ings, 1 Williams, (Vt.) 646.]

"1 Story on Contracts, § 49; Chitty on Contr. 124, (4th Am. edit.) and
cases there cited; Smith v. Mayo, 9 Mass. 62; Ford v. Phillips, 1 Pick.
202; Whitney v. Dutch, 14 Mass. 457, 461; Thrupp v. Fielder, 2 Esp.
628; Harmer v. Killing, 5 Esp. 102. By Stat. 9 Geo. 4, ch. 14, § 5, it is
now necessary, in England, that the new promise or ratification be in writ-
ing and signed by the party to be charged. And it is held, that any writ-
ten instrument, signed by the party, which, if signed by a person of full
age, would have amounted to an adoption of the act of a party acting as an
agent, will, in the case of an infant who has attained his majority, amount
to a ratification of his promise. Harris v. Wall, 1 Exch. R. 122. And see
Hartley v. Wharton, 11 Ad. & El. 934; [Mawson v. Blane, 26 Eng. Law &
Eq. 560. An admission of an infant as to the amount of a claim, may be used
to show the amount due, although it may not be sufficient to render him
liable. Ackerman v. Runyon, 1 Hilton, 169.]

2'Thomson v. Lay, 4 Pick. 48; Cole v. Saxby, 3 Esp. 160. And see
Davies v. Smith, 4 Esp. 36; Besford v. Saunders, 2 H. Bl. 116.
3 Thornton v. Illingworth, 2 B. & C. 824; 4D. & R. 525, 8. C.
-PART Iv.] INFANCY. 399

tion of it appears to have been a contract, which the infant
-has tortiously violated.!. Thus, if he hired a horse, which he
injured by treating negligently, or by riding immoderately,
the plaintiff cannot charge the infant in tort, by a mere
change of the form of action, where he would not have been
chargeable in assumpsit. To such an action, the plea of
infancy in bar is held good But if the contract was wholly
abandoned by the infant, as if he hire a horse to go to a
certain place, and goes to a different place, or wantonly
beats the animal to death, he is liable in trover or trespass?
On the other hand, if the action is ‘brought in assumpsit
but the foundation is in tort, as for money which he has

fraudulently embezzled, the plea of infancy is not a good
bar#

 

| [An infant is liable to an action ex delicto, for fraudulent representations
as to his age in procuring a contract which he subsequently avoids by the
defence of infancy. Fitts x. Hall, 9 N. H. 441. But quere. See Merriam
v. Cunningham, 11 Cush. 40; Price v. Hewett, 18 Eng. Law & Eq. 522, and
note. ] i

2 Jennings v. Rundall, 8 T. R. 337.

_ 8 Vasse v. Smith, 6 Cranch, 226; Campbell v. Stakes, 2 Wend. 137;

[Towne v. Wiley, 23 Vt. (8 Washb.) 355.]

4 Bristow v. Eastman, 1 Esp. 172. [The authority of this case is ques-
tioned in 20 Am. Jur. 267.] Vasse v. Smith, 6 Cranch, 226. See Story on
Contracts, § 45. [In an action against an infant on a promissory note given
by an infant for a chattel which he had obtained by fraud, and which he
refused to deliver on demand, the infant prevailed on the plea of infancy.
Subsequently an action of tort for the conversion of the chattel was brought
against him and he was held liable therein, he having sold the chattel before
the demand was made upon him. Walker v. Davis, 1 Gray, 506.]
400 LAW OF EVIDENCE. [PART IV.

INSANITY.

§ 369. Wueruer lunacy, or insanity of mind, is in all
cases a valid bar, per se, to an action on the contract of the
party, has been much controverted, both in England and
America. The rule that a man shall not be permitted to
stultify himself, is now entirely exploded’; and the question
is reduced to this, namely, whether a person non compos
mentis can make any contract which shall bind him. This
has led to a distinction, taken between contracts executed
and contracts executory; and it seems now to be generally
agreed, that the executed contract of such person is to be
regarded very much like that of an infant; and that, there-
fore, when goods have been supplied to him which were
necessaries, or were suitable to his station and employment,
and which were furnished under circumstances evincing
that no advantage of his mental infirmity was attempted to
be taken, and which have been actually enjoyed by him, he
is liable, in law as well as equity, for the value of the goods.}

 

1 Chitty on Contr. 108-112; Story on Contr. §§ 23, 24, 25; Stock on Non
Compotes Mentis, p. 26-30, and cases there cited; Thompson v. Leach, 3
Mod. 310; Seaver v. Phelps, 11 Pick. 304; Neill +. Morley, 9 Ves. 478;
Stiles v. West, cited 1 Sid. 112. [A question has been made whether the
deed of a person of unsound mind conveying land is void, or only voidable.
It was held to be voidable only and not void in Allis v. Billings, 6 Met. 415,
The question was very fully considered in Arnold v. Richmond Iron Works,
1 Gray, 437, and in delivering the opinion of the Court, Shaw, C. J., spoke
as follows : —

“The present case is so like the recent case of Allis v. Billings, 6 Met.
415, in all its essential features, that it seems hardly necessary to do more
than cite that case. It was there held that when a deed conveying land had
been duly signed, sealed, delivered, and acknowledged, and placed in a con-
dition to be put on record, by one of unsound mind, and cash and notes had
been given by the grantee in security and satisfaction for the price, such
PART Iv.] INSANITY. 401

Thus, a person of unsound mind has been held liable in
assumpsit for work and labor} and for carriages, suitable to
his rank and condition.?

 

deed was voidable and not void; and thatif, afterwards, and after the grantor
was restored to his right mind, he did acts deliberately, manifesting an in-
tention to ratify and confirm the transaction of sale and conveyance, he
could not afterwards avoid that deed, by alleging that he was insane when
he made it. Such a deed, to many purposes, is equivalent to a feoffment
with livery of seisin; and we believe it has long been held, by the rules
of the Common Law, that such a feoffment would pass a seisin de facto,
and vest the estate in the feoffee, subject to be avoided by matter of record,
entry, or by some of the modes allowed by law for avoiding and annulling
the effect of such a conveyance. To this extent, the rule would seem to be
founded on the plainest principles of justice, as well as law. In such case,
the conveyance of an estate by bargain and sale on the one side, and by the
payment, or contract for the payment on the other, constitutes one entire
transaction, mutually conditional and dependent. It must be affirmed or
_avoided as a whole. It cannot be affirmed in part, so as to hold the price,
and disaffirmed in part, so as to avoid the conveyance. Badger v. Phinney,
15 Mass. 359.

“Tf then the unfortunate person of unsound mind, coming to the full pos-
session of his mental faculties desires to relieve himself from a conveyance
made during his incapacity, he must restore the price, if paid, or surrender
the contract for it, if unpaid. In short, he must place the grantee, in all re-
spects, as far as possible, in statu quo. To-that extent, the case of Allis v.
Billings does go, and we think it is well sustained by the authorities cited.
We say nothing here of a bond, covenant, or other instrument purely execu-
tory, where the obligation arises solely from the act of a disposing mind,
binding a person to some obligation or duty, and under which no estate or
property has passed or been transferred; nor if such a contract would be
voidable and not void, do we consider here what acts, either of record or in
pais, would be sufficient, on the part of the party contracting, after being
restored, to avoid or toconfirm such contract. Such a case may depend upon
its own peculiar circumstances, to be judged of as they arise. The case of
Allis v. Billings is one where a party, restored to his right mind, having a
full jus disponendi, and full capacity to judge and act in the conduct of his
affairs, finding what had occurred whilst his mind was under a cloud, balanc-
ing the advantages to himself of reclaiming his land or holding the price,
prefers the latter. By doing this, he necessarily affirms the deed, by which
he in terms alienated his land.

-1 Brown v. Joddrell, 3 C. & P. 30.
2 Baxter v. Earl of Portsmouth, 5 B. & C.170; 7D. & R. 614, 8. C.; 2
C. & P. 178, 8. C. . ,
34 *
402 LAW OF EVIDENCE. [PART Iv.

§ 370. On the other hand, insanity of mind is generally
admitted, as a valid bar to an action upon an executory con-

 

“Tn the very full argument offered by the counsel for the plaintiff in this
case, it was suggested, rather than distinctly proposed to the Court, to revise
the case relied on, on the ground that there were authorities, deserving of
consideration, leading to a contrary result. Undoubtedly there have been
various views taken of this difficult subject, and there may be some discrep-
ancy in the cases, especially whilst the maxim prevailed, that nd man could
stultify himself, or in other words, could plead his own insanity to avoid his
acts and contracts; a maxim founded mainly on considerations of policy,
from the danger that men might feign past insanity, and be tempted to pro-
cure false testimony to establish it, in order to avoid and annul their solemn
obligations and contracts. But on a reéxamination of the authorities, we see
nothing to raise a doubt that the law, as it now stands, is correctly declared
in that case.

“It was urged that the terms ‘void and voidable,’ as applied to the deed
of a person non compos, do not express the true distinction, but that there
may be an intermediate class of deeds confirmable, that is, deeds made by
one having no capacity to contract, and so void until confirmed by the party
after being restored. To say nothing of the practical inconvenience of mak-
ing the operation of a deed to transfer an estate depend on some act, done
months, perhaps years after it has been delivered and recorded, some accept-
ance of payment, or other act in pais, passing between the parties without
record or other means of notoriety ; it would afford no more means of security
to the rights of the party under disability, than the power of refusing to
ratify and actually disaffirming the deed, when the powers of his mind and
his disposing capacity are fully restored. .We are therefore of opinion that
the deed of the plaintiff, made whilst in an unsound state of mind, was
voidable, and not absolutely void, and as a necessary legal consequence,
that it was capable of being ratified and confirmed by him, after his mind
was restored.

“The acts necessary to be done, to affirm and ratify a prior voidable act,
or to annul it and set it aside, may be various, according to the nature of the
act to be thus affirmed or disaffirmed, and to the condition and capacity of
the party doing the act. In Tucker v. Moreland, 10 Pet. 58, it was held
that in the analogous case of an infant, he might avoid his act, deed, or con-
tract, by different means, according to the nature of the act or the circum-
stances of the case. One of the cases put is, where an infant makes a lease ;
the receipt of rent, after he comes of age, i8 a ratification. Bac. Ab. Infancy
and Age, I. 8.

“In the present case, after the plaintiff was restored to the full possession
of his reason, he found that he had executed a conveyance of his estate, that
the defendants were in possession under his deed; also, that he held certain
PART Iv.] INSANITY. 403

tract of the party ;1 though in England it has in some cases
been heid insufficient as a defence, per se, but admissible
evidence to support a defence grounded upon undue advan-
tage taken, or fraud practised upon the party, by reason of
his want of common discernment.?

§ 371. The state and condition of mind of the party is
proved like other facts, to the Jury; and evidence of the
state of his mind, both before and after the act done, is
admissiBle2 An inquisition, taken under a commission of
lunacy, is admissible evidence, but not conclusive in the
party’s own favor. It has, however, been held conclusive
against other persons, subsequently dealing with the lunatic,
instead of dealing with his guardian, who seek collaterally to

 

notes for part of the purchase-money. His forbearing to enter, his giving
no notice of his election to disaffirm the conveyance, would be negative acts,
and perhaps equivocal; but his demanding and receiving payment of the
notes was affirmative, significant, and decisive. It was inconsistent with any
just purpose to disaffirm the conveyance. Payment and acceptance of the
compensation are decisive of an election to affirm. Butler v. Hildreth, 5
Met. 49; Norton v. Norton, 5 Cush. 530.”]

1 Sentance v. Poole, 3 C. & P’ 1; Stock on Non Compotes Mentis, p. 30 ;
Mitchell v. Kingman, 5 Pick. 431; Seaver v. Phelps, 11 Pick. 304; Chitty
on Contracts, p. 112; Story on Contracts, §§ 23, 24, 25.

2 Tbid.; Dane v. Kirkwall, 8 C. & P.679. There is a material difference
between insanity and idiocy, in respect to the evidence, and its effect.
Many acts of business may be done by a lunatic, and the lunacy not be
detected ; but it is scarcely possible to predicate the same of an idiot, or an
imbecile person. Such acts, therefore, are strong evidence on an issue of
idiocy; but not on an issue of insanity. Bannatyne v. Bannatyne, 16 Jur.
864; 14 Eng. Law & Eg. R. 581, 590.

3 Grant v. Thompson, 4 Conn. R. 203. Insanity is shown by the proof of
acts, declarations, and conduct, inconsistent with the character and previous
habits of the party. The opinions of the witnesses, as to the sanity or in-
sanity of the person, are not admissible, unless they are medical men, or
experts. McCurry v. Hooper, 12 Ala. R. 823; Anie, Vol. 1, § 440; [Bea-
van v. McDonnell, 26 Eng. Law & Eq. 540. The rule of evidence, that
where insanity is proved or admitted at any particular time, it is presumed
to continue, does not apply to insanity caused by a violent disease. Hix v.
Whittemore, 4 Met. 545.]

4 Faulder v. Silk, 3 Campb. 126; Dane v. Kirkwall, 8 C. & P. 679.
404 LAW OF EVIDENCE. [PART IV.

avoid the guardian’s authority, by showing that the lunatic
has been restored to his reason.1_ Insanity, once proved to
have existed, is presumed to continue, unless it was acci-
dental and temporary in its nature; as, where it was occa-
sioned by the violence of disease.?

§ 371 a. What constitutes insanity of mind, is a question
which has been very much discussed, especially of late years ;
and the opinions of learned Judges seem at first view to be
conflicting. But much of the apparent discrepancy may be
reconciled, by adverting to the nature of the cases respec-
tively in judgment. The degree of unsoundness or imbecility
of mind sufficient to invalidate the acts of the party in some
cases, may not suffice in others. But in regard to insanity,
where there is no frenzy or raving madness, the legal and
true character of the disease is delusion, or, as the physicians’
express it, illusion or hallucination. And this insane delusion
consists in a belief of facts, which no rational person would
believe’ It is distinguished from moral insanity, which con-
sists in the perversion or disordered state of the affections or
moral powers of the mind, in contradistinction to the powers
of the understanding or intellect. This latter state of the
mind is held not sufficient to invalidate a will, unless it is
accompanied by that delusionin matters of fact which is the
test of legal insanity.*

§ 372. In criminal cases, in order to absolve the party from
guilt, a higher degree of insanity must be shown, than would

 

1 Leonard v. Leonard, 14 Pick. 280; Ante, Vol. 1, §$ 551, 556.

2 See ante, Vol. 1,§ 42; Hix v. Whittemore, 4 Met. 545; 1 Collinson on
Lunacy, 55; Shelford on Lunatics, 275 ; Swinburne on Wills, Part II. § iii.
5, 6, 7; 1 Hal. P. C. 30.

3 Dew v. Clark, 3 Addams, Eccl. R. 79.

4 Tbid.; Frere v. Peacocke, 1 Rob. Eccl. R. 442, 445. And see Pritchard
on Insanity in relation to Jurisprudence, pp. 16, 19, 30. Commonwealth v.
Mosler, 4 Barr, 264. See further, as to monomania, ante, Vol. 1, § 865;
Regina v. Hill, 15 Jur. 470; 5 Eng. Law & Eq. R. 547; 5 Cox, Cr. C. 259,
8. C.; Waring v. Waring, 12 Jur. 947, Priv. C.; Best's Prin. of Ev. § 184;
[ Post, § 689.]
PART IV.] INSANITY. — 405

be sufficient to discharge him from the obligations of his
contracts. In these cases, the rule of law is understood to be
this: that, “a man is not to be excused from responsibility,
if he has capacity and reason sufficient to enable him to dis-
tinguish between right and wrong, as to the particular act he
is then doing; a knowledge and consciousness that the act
he is doing is wrong and criminal, and will subject him to
punishment. In order to be responsible, he must have sufh-
cient power of memory to recollect the relation in which he
stands to others, and in which others stand to him; that the
act he is doing is contrary to the plain dictates of justice and
right, injurious to others, and a violation of the dictates of
duty. On the contrary, although he may be laboring under
partial insanity, if he still understands the nature and char-
acter of his act and its consequences, if he has a knowledge
that it is wrong and criminal, and a mental power sufficient
to apply that knowledge to his own case, and to know that
if he does the act he will do wrong and receive punishment,
such partial insanity is not sufficient to exempt him from
responsibility for criminal acts. If then it is proved to the
satisfaction of the Jury, that the mind of the accused was in
a diseased and unsound state, the question will be, whether
the disease existed to so high a degree, that, for the time
being, it overwhelmed the reason, conscience, and judgment,
and whether the prisoner, in pouemitting the homicide, acted
from an irresistible and uncontrollable impulse ; if so, then
the act was not the act of a voluntary agent, but the invol-
untary act of the body without the concurrence of a mind
directing it.” +

 

1 See The Trial of Abner Rogers, pp. 276, 277, per Shaw, C.J. The
whole of this lucid exposition of the Criminal Law of Insanity, by the
learned Chief Justice, was as follows: “The great object of punishment
by law is to afford security to the community against crimes, by punishing
those who violate the laws; and this object is accomplished by holding out
the fear of punishment, as the certain consequences of such violation. Its
effect is to present to the minds of those who are tempted to commit crime,
in order to some present gratification, a strong counteracting motive, in the.
fear of punishment.

“ But this object can only be accomplished when such motive acts on an
406 LAW OF EVIDENCE. [PART Iv.

§ 373. In all such cases, the Jury are to be told that every
man is to be presumed to be sane, and to possess a sufficient

 

t
intelligent being, capable of remembering that the act about to be committed
is wrong, contrary to duty, and such as in any well-ordered society would
subject the offender to punishment. It might in some respects, be more
accurate to say, that the party thus acting under a temptation, must have
memory and intelligence, to recollect and know that the act he is about to
commit is a violation of the law of the land. But this mode of stating the
rule might lead to a mistake of another kind, inasmuch as it would seem to
hold up the idea, that before a man can be justly punished, it must appear
that he knew that the act was contrary to the law of the land. But the law
assumes that every man has knowledge of the laws prohibiting crimes; an
assumption not strictly true in fact, but necessary to the security of society,
and sufficiently near the truth for practical purposes. It is expressed by
the well-known maxim, ignorantia legis neminem excusat, — ignorance of the
law cannot be pleaded as an excuse for crime. The law assumes the exist-
ence of the power of conscience in all persons of ordinary intelligence; a
capacity to distinguish between right and wrong, in reference to particular
actions ; a sense of duty and of right. It may also be safely assumed, that
every man of ordinary intelligence knows that the laws of society are so
framed and administered as to prohibit and punish wrong acts, violations of
duty towards others, by penalties in some measure adapted to the nature and
aggravation of the wrong and mjurious acts thus done. If therefore it hap-
pens to be true in any particular case, that a person, tempted to commit a
crime, does not know that the particular act is contrary to positive law, or
what precise punishment the municipal law annexes to such act; yet if the
act is palpably wrong in itself, if it be manifestly injurious to the rights of
another, as by destroying his life, maiming his person, taking away his prop-
erty, breaking into or burning his dwelling-house, and the like, there is no
injustice in assuming that every man knows that such acts are wrong, and must
subject him to punishment by law; and therefore it may be assumed, for
all practical purposes, and without injustice, that he knows the act is contrary
to law. ‘This is the ground upon which the rule has been usually laid down
by Judges, when the question is, whether a person has sufficient mental
capacity to be amenable for the commission of a crime; that he must have
sufficient mental capacity to distinguish between right and wrong, as applied °
to the act he is about to commit, and to be conscious that the act is wrong;
instead of saying that he must have sufficient capacity to know that it is
contrary to the law of the land; because this power to distinguish between
right and wrong, as applied to the particular act,—a power which every
human being, who is at the same time a moral agent, and a subject of civil
government, is assumed to possess, — is the medium by which the law assumes
that he knows that the same act which is a violation of high moral duty,
PART IV.| INSANITY. 407

degree of reason to be responsible for his crimes, until the
contrary be proved to their satisfaction ; and that, to estab-

 

is also a violation of the law of the land. Whereas, if it were stated that a
person must have sufficient mental capacity to know and understand that the
act he is about committing is a violation of the law of the land, it might lead
to a wrong conclusion, and raise a doubt in regard to persons ignorant of the
law. There is no doubt that many a man is held responsible for crime, and’
that rightfully, who might not know that the act he was about committing was
contrary to the law of the land, otherwise than as a moral being he knows
that it is wrong, a violation of the dictates of his own natural sense of right
and wrong.

“To recur, then, to what has been already stated: In order that punishment
may operate by way of example, to deter others from committing criminal
acts, when under temptation to do so, by presenting a strong counteract-
ing motive, the person tempted must have memory and intelligence, to
know that the act he is about to commit is wrong, to remember and un-
derstand, that if he commits the act, he will be subject to the punish-
ment, and reason and will, to enable him to compare and choose between
the supposed advantage or gratification to be obtained by the criminal act,
and the immunity from punishment which he will secure by abstaining
from it.

“A person, therefore, in order to be punishable by law, or in order that
his punishment by law may operate as an example to deter others from
committing criminal acts, under like circumstances, must have sufficient
memory, intelligence, reason, and will, to enable him to distinguish between
right and wrong, in regard to the particular act about to be done, to know
and understand that it will be wrong, and that he will deserve punishment
by committing it.

‘“ This is necessary on two grounds :—

“1st. To render it just and reasonable to inflict the punishment on the
accused individual; and

“9a. To render his punishment, by way of example, of any utility to
deter others in like situation from doing similar acts, by holding up a coun-
teracting motive in the dread of punishment, which they can feel and com-
prehend.”

With more immediate reference to the case, the Chief Justice proceeded
as follows : —

“In order to constitute a crime, a man must have intelligence and capa-
city enough to have a criminal intent and purpose; and if his reason and
mental powers are either so deficient that he has no will, no conscience, or
controlling mental power or if, through the overwhelming violence of mental
disease, his intellectual power is for the time obliterated, he is not a responsible
moral agent, and is not punishable for criminal acts.

“ But these are extremes easily distinguished, and not to be mistaken.
408 ‘LAW OF EVIDENCE. [PART IV.

lish a defence on the ground of insanity, it must be clearly
proved, that at the time of committing the act, the party.
accused was laboring under such a defect of reason from dis-
ease of the mind, as not to know the nature and quality of
the act he was doing, or, if he did know it, that he did not
know he was doing what was wrong. The mode of putting

 

The difficulty lies between these extremes, in the cases of partial insanity,
where the mind may be clouded and weakened, but not incapable of re-
membering, reasoning, and judging, or so perverted by insane delusion as to
act under false impressions and influences. In these cases, the rule of law,
as we understand it, is this: [Here follows the passage already quoted in
the text. ]

“The character of the mental disease relied upon to excuse the accused
in this case, is partial insanity, consisting of melancholy, accompanied by de-
lusion. The conduct may be in many respects regular, the mind acute, and
the conduct apparently governed by rules of propriety, and at the same time
there may be insane delusion by which the mind is perverted. The most
common of these cases, is that of monomania, when. the mind broods over
one idea and cannot be reasoned out of it. This may operate as an excuse
for a criminal act in one or two modes: Either the delusion is such that the
person ander its influence has a real and firm belief of some fact, not true in
itself, but which if it were true, would excuse his act; as where the belief is
that the party killed had an immediate design upon his life, and under that
belief the insane man killed him in supposed self-defence. A common in-
stance is where he fully believes that the act he is doing is done by the im-
mediate command of God, and he acts under the delusive but sincere belief
that what he is doing is by the command of a superior power, which super-
sedes all human laws, and the laws of nature ; or

“2d. This state of delusion indicates to an experienced person that the
mind is in a diseased state, that the known tendency of that diseased state of
the mind, is to break out into sudden paroxysms of violence, venting itself in
acts of homicide, or other violent acts, toward friend or foe indiscriminately,
so that although there were no previous indications of violence, yet the sub-
sequent act, connecting itself with the previous symptoms and indications,
will enable an experienced person to say, that the outbreak was of such a
character, that for the time being it must have overborne memory and reason ;
that the act was the result of the disease, and not of a mind capable of choos-
ing; in short, that it was the result of uncontrollable impulse, and not of a
person acted upon by motives, and governed by the will. Id. p. 273-279.
This case is reported in a more condensed form, in 7 Met. 500.. The test
of insanity is delusion. See Freer v. Peacocke, 11 Jur. 247; Common-
wealth v. Mosler, 4 Barr, 264; The State v. Spicer, 3 Amer. Law Journ.
128, N.S.
PART IV.] INSANITY. 409

the latter part of the question to the Jury on these occasions
has generally been, whether the accused, at the time of doing
the act, knew the difference between right and wrong; which
mode, though rarely, if ever, leading to any mistake with the
Jury, is not deemed so accurate when put generally and in
the abstract, as when put with reference to the party’s knowl-
edge of right and wrong in respect to the very act with which
he is charged.!

 

1 Per Tindal, C. J., in McNaghten’s case, 10 Clark and Fin. 210. In
that case, the following questions were propounded to the learned Judges,
by the House of Lords : —

“1st. What is the law respecting alleged crimes, committed by persons
afflicted with insane delusion in respect of one or more particular subjects or
persons; as for instance, where, at the time of the commission of the alleged
crime, the accused knew he was acting contrary to law, but did the act com-
plained of with a view, under the influence of insane delusion, of redressing
or avenging some supposed grievance or injury, or of producing some sup-

. posed public benefit ?

“© 2d. What are the proper questions to be submitted to the Jury, when a
person, alleged to be afflicted with insane delusion respecting one or more
particular subjects or persons, is charged with the commission of a crime,
(murder for example,) and insanity is set up as a defence ?

“3d. In what terms ought the question to be left to the Jury, as to the
prisoner’s state of mind at the time when the act was committed ?

“4th. If a person, under an insane delusion as to existing facts, commits
an offence in consequence thereof, is he thereby excused ? '

“5th. Can a medical man, conversant with the disease of insanity, who
never saw the prisoner previous to the trial, but who was present during the
whole trial and the examination of all the witnesses, be asked his opinion as
to the state of the prisoner’s mind at the time of the commission of the
alleged crime, or his opinion whether the prisoner was conscious, at the time
of doing the act, that he was acting contrary to law; or whether he was
laboring under any and what delusion at the time ?”

The joint opinion of all the Judges, except Mr. Justice Maule, was de-
livered by Lord Chief Justice Tindal, as follows : “ My Lords, her Majesty’s
Judges, with the exception of Mr. Justice Maule, who has stated his opinion
to your Lordships, in answering the questions proposed to them by your
Lordships’ House, think it right in the first place to state, that they have
forborne entering into any particular discussion upon these questions, from
the extreme and almost insuperable difficulty of applying those answers to
cases in which the facts are not brought judicially before them. The facts
of each particular_case must of necessity present themselves with endless

VOL. It. 35
410 LAW OF EVIDENCE. [PART Iv.

§ 374. In regard to drunkenness, it is now settled, that inca-
pacity from that cause is a valid defence to an action upon

 

variety, and with every shade of difference in each case, and it is their duty
to declare the law upon each particular case on facts proved before them,
and after hearing. arguments of counsel thereon. They deem it at once
impracticable, and at the same time dangerous to the administration of jus-
tice if it were practicable, to attempt to make minute applications of the
principles involved in the answers given them by your Lordships’ questions ;
they have therefore confined their answers to the statements of that which
they hold to be the law upon the abstract questions proposed by your Lord-
ships; and as they deem it unnecessary in this particular case to deliver
their opinions seriatim, and as all concur in the same opinion, they desire
me to express such their unanimous opinion to your Lordships. In answer
to the first question, assuming that your Lordships’ inquiries are confined to
those persons who labor under such partial delusions only, and are not in
other respects insane, we are of opinion, that, notwithstanding the party
accused did the act complained of, with a view, under the influence of insane
delusion, of redressing or avenging some supposed grievance or injury, or
producing some public benefit, he is nevertheless punishable, according to
the nature of the crime committed, if he knew at the time of committing
such crime that he was acting contrary to law, — by which expression we
understand your Lordships to mean the law of the land. As the third and
fourth questions appear to us to be more conveniently answered together,
we have to submit our opinion to be, that the Jury ought to be told, in all
cases, that every man is to be presumed to be sane, and to possess a suffi-
cient degree of reason to be responsible for his crimes, until the contrary
be proved to their satisfaction; and that to establish a defence on the
ground of insanity, it must be clearly proved, that, at the time of commit-
ting the act, the party accused was laboring under such a defect of reason,
from disease of the mind, as not to know the nature and quality of the
act he was doing; or, if he did know it, that he did not know he was doing
what was wrong. The mode of putting the latter part of the question to
the Jury on these occasions, has generally been, whether the accused, at
the time of doing the act, knew the difference between right and wrong;
which mode, though rarely if ever leading to any mistake with the Jury, is
not, as we conceive, so accurate when put generally and in the abstract, as
when put with reference to the party’s knowledge of right and wrong in
respect to the very act with which he is charged. If the question were to
be put as to the knowledge of the accused solely and exclusively with refer-
ence to the law of the land, it might tend to confound the Jury, by inducing
them to believe that an actual knowledge of the law of the land was essen-
tial in order to lead to a conviction; whereas the law is administered upon
the principle, that every one must be taken conclusively to know it, without
proof that he does know it. Ifthe accused were conscious that the act was
PART IV.] INSANITY. 411

the contract of the party, made while under its influence, as
well where it was voluntary and by the fault of the defend-
ant, as where it was caused by the fraud or procurement of
the plaintiff! In criminal cases, though insanity, as we have
just seen, is ordinarily an excuse, yet an exception to this rule
is when the crime is committed by a party while in a fit of
intoxication ; the law not permitting a man to avail himself
of the excuse of his own gross vice and misconduct, to shel-
ter himself from the legal consequences of such crime. But
the crime, to be within the exception, and theréfore punish-
able, must take place and be the immediate result of the fit

 

one which he ought not to do, and if that act was at the same time contrary
to the law of the land, he is punishable, and the usual course, therefore, has
been to leave the question to the Jury, whether the party accused had a
sufficient degree of reason to know that he was doing an act that was wrong ;
and this course we think is correct, accompanied with such observations
and explanations as the circumstances of each particular case may require.
The answer to the fourth question must of course depend on the nature of
the delusion; but making the same assumption as we did before, namely,
that he labors under such partial delusion only, and is not in other respects
insane, we think he must be considered in the same situation, as to respon-
sibility, as if the facts with respect to which the delusion exists were real.
For example, if, under the influence of delusion, he supposes another man
to be in the act of attempting to take away his life, and he kills that man,
as he supposes, in self-defence, he would be exempt from punishment. If
his delusion was, that the deceased had inflicted a serious injury to his char-
acter and fortune, and he killed him in revenge for such supposed injury,
he would be liable to punishment. In answer to the last question, we state
to your Lordships, that we think the medical man, under the circumstances
supposed, cannot in strictness be asked his opinion in the terms above stated,
because each of these questions involves the determination of the truth of
the facts deposed to, which it is for the Jury to decide; and the questions
are not mere questions upon a matter of science, in which case such evidence
is admissible. But where the facts are admitted, or not disputed, and the
question becomes substantially one of science only, it may be convenient to
allow the question to be put in that general form, though the same cannot be
insisted on as a matter of right.” Ibid. 200-212. [See also, United States
v. Shultz, 6 McLean, 121; People v. Sprague, 2 Parker, Cr. R. (N. Y.) 43;
People v. Robinson, 1 Ib. 649; United States v. M’Glue,1 Curtis, Ct. Ct.
1; McAllister v. State, 17 Ala. 434.]

1 Chitty on Contracts, p. 112, (4th Am. ed.); Story on Contracts, § 27,
and cases there cited.
. 412 LAW OF EVIDENCE. [PART Iv.

of intoxication, and while it lasts, and not the result of in-
sanity, remotely occasioned by previous habits of gross
indulgence in spirituous liquors. The law looks to the im-
mediate and not the remote cause; to the actual state of the
party, and not to the causes which remotely produced it.!

 

1 United States v. Drew, 5 Mason, R. 28, per Story, J.; 1 Russell on
Crimes, pp. 7, 8, (8d ed.), See Ray on the Medical Jurisprudence of Insanity,
ch. 24. In the Jurisprudence of Continental Europe, drunkenness is gener-
ally distinguished into three kinds, — (1.) Intentional, voluntarily induced in
order to the commission of a crime while in that state ;— (2.) Culpable, by
drinking without any intention to become drunken, but where the party
might easily have foreseen that he. would naturally become so;— (3.) Incul-
pable, where such consequence could not easily have been foreseen, or where
the party took due precautions against any injurious effects, as by directing
his servants to confine him if he should become drunk, or where the drunk-
enness was justly attributable to others, or was the result of disease. In the
first case, it is no excuse; in the second, it reduces the degree of criminality
and mitigates the punishment; in the third, the liability to punishment
ceases. See Professor Mittermaier’s learned Treatise on the Effect of Drunk-
enness upon Criminal Responsibility, §§ vi. vii. vill. ix.

[In Commonwealth v. Hawkins, 3 Gray, 466, which was an indictment
for murder, the Jury were thus instructed: “ The rule of lawis, that although
the use of intoxicating liquors does to some extent blind the reason and ex-
asperate the passions, yet as a man voluntarily brings it upon himself, he
cannot use it as an excuse, or justification, or extenuation of crime. A man,
because he is intoxicated, is not deprived of any legal advantage or protec-
tion; but he cannot avail himself of his intoxication to exempt him from any
legal responsibility which would attach to him if sober.”]
PART IV.] INSURANCE. 413

INSURANCE.

§ 375. Tue ordinary subjects of the contract of Insurance
are (1.) Marine Risks; (2.) Losses by fire; (3.) Lives; all
which will be considered in their order.

§ 376. In an action on a policy of insurance, whatever
may be the subject, the declaration’ contains the following

 

1 The following forms of counts, in the simplest cases arising upon marine
policies, established in Massachusetts, are well adapted to the brevity of
modern practice at Common Law in any of the United States : —

1. On a suip, for a TOTAL Loss. “In a plea of the case, for that on
——, the plaintiff was owner of the ship John, then lying in the harbor of
aforesaid ; and the said Company, in consideration of a premium
therefor paid to them by the plaintiff, made a policy of insurance upon the
said ship for a voyage from the said —— to Cadiz in Spain, and at and from
said Cadiz to her port of discharge in the United States ; and thereby prom-
ised to insure for the plaintiff ten thousand dollars upon the said ship for the
said voyage against the perils of the seas, and other perils in the said policy
mentioned ; (@) and the plaintiff avers that the said ship did on —— sail
from said on the voyage described in said policy, and, whilst proceeding
therein, was, by the perils of the seas, wrecked and totally lost; of which the
said Insurance Company, on , had notice, and were bound to pay the
same on demand, (or in sixty days); yet they have never paid the said sum
of ten thousand dollars, though requested, (or though sixty days have elapsed.)
To the damage,” &c.

2. Count fora PARTIAL LOSs, and for CONTRIBUTION TO A GENERAL
AVERAGE. [State the plaintitf’s interest, the voyage, and the insurance, as
in the last precedent, to (a), and proceeds as follows : —]

«—— and the said Company did, in and by the same policy, further prom-
ise, that in case of any loss or misfortune to the said ship, it should be lawful
for the plaintiff and his agents to labor for and in the defence and recovery
of the said ship, and that the said Company would contribute to the charges
thereof, in proportion as the said sum assured by them should be to the whole
sum at risk; and the plaintiff avers, that the-said ship did, on , sail from
said on the voyage aforesaid; and, whilst proceeding therein, was, by
the perils of the seas, dismasted, and otherwise damaged in her hull, rigging,
and appurtenances ; insomuch that it was necessary, for the preservation of

35 *

 

 

 

 

 

 
414 LAW OF EVIDENCE. [PART Iv.

allegations, which must be proved by the plaintiff, if not
admitted by the pleadings :—(1.) the Policy; (2.) the plain-
tiff’s Interest in the subject insured, and the payment of the
premium; (8.) the inception of the Risk; (4.) the Perform-

 

the said ship and her cargo, to throw over a part of the said cargo; and the
same was accordingly thrown over for that purpose ; by means of all which,
the plaintiff was obliged to expend two thousand dollars in repairing the said
ship at ,and also (or, and is also liable to pay) the sum of five hundred
dollars as a contribution to and for the loss occasioned by the said throwing
over of a part of the said cargo ; and the said ship also suffered much damage
that was not repaired in said Cadiz; of all which the said Company on i
had notice, and became bound to pay the same in sixty days; yet, though
said sixty days have elapsed, they have never paid the said sum of ten thous-
and dollars, nor any part thereof. To the damage,” &c.

3. Count for a TOTAL Loss OF CARGO BY FIRE. “In a plea of the case,
for that on ,a certain brigantine called The William was lying at ——,
and the plaintiff was the owner of the cargo, (or of certain goods,) then laden
or about to be laden on board of the said vessel; and the said C. D., in con-
sideration of a certain premium therefor paid to him by the plaintiff, made
a certain policy of insurance in writing upon the said cargo, (or goods,) at
and from said to Hamburg, or any other port or port in the north of
Europe, and at and from thence to said , or her port of discharge in the
United States; and the said C. D., by said policy, promised to insure for the
plaintiff ‘dollars on the said cargo, (or goods,) for the voyage aforesaid,
against the perils of fire, and other perils in said policy specified; and the
plaintiff avers, that the said vessel, with the said cargo (or goods) on board,
did on -—— sail from said on the voyage aforesaid; and afterwards,
during the said voyage, whilst the said vessel, with the said cargo on board,
was lying at the port of Altona, in the north of Europe, the said cargo (or
goods) was burned, and wholly destroyed by fire, of which the said C. D.

 

 

 

 

 

 

 

 

 

on had notice, and became bound to pay the same in sixty days; yet
he has not paid the sum of —— dollars, nor any part thereof. To the dam-
age, &c.

4. Count for a TOTAL LOSS OF FREIGHT, BY RESTRAINT, DETAINMENT,
&e.: “ for that on the plaintiff was interested in the freight of a
vessel called The George, then bound on a voyage hereinafter described ;
and the said Insurance Company, in consideration of a premium therefor,
paid to them by the plaintiff, made a policy of insurance upon the said
freight for the voyage from —— to one or more ports beyond the Cape of
Good Hope, one or more times; for the purpose of disposing of her outward,
and procuring a return cargo, and at and from thence to , and thereby
promised to insure for the plaintiff three thousand dollars upon the said
freight for the voyage aforesaid, against the perils of enemies, pirates, assail-

 

 

 
PART Iv.] INSURANCE. 415

ance of any precedent Condition, or Warranty, contained in
the policy ; and (5.) the Loss, within the terms and meaning
of the policy.

§ 377. And First, as to Marine Insurance. In an action
by the assured, the first step in the trial is thé proof of the
policy. The instrument itself being the best evidence, must
be produced and proved; or its loss must be accounted for,
and its contents proved by secondary evidence! If it was
signed by another person, as the agent of the defendant, his
agency must be proved.? And proof of. the signature by an
agent will satisfy an allegation of signature by the defend-
ant himself? Parol evidence of what passed at the time of
making the policy is, as we have heretofore shown, inadmis- ©
sible to affect the written agreement. But the general usage
of merchants may be shown to explain ambiguities or define
the terms of the policy, though not to contradict its plain
language The general usage of trade, in the city where
the insurance is effected, may also be proved for this pur-
pose; but not the usage or practice in a particular office, or
among a particular class of underwriters, where or to whom
the party was not in the habit of resorting to effect insur-

 

ing thieves, restraints, and detainments of all kings, princes, or people, of
what nation or quality soever, and against other perils in the said policy

mentioned; and the plaintiff avers, that the said vessel did on sail from __
said on the voyage aforesaid, and afterwards, during said voyage, was

forcibly taken on the high seas, (or, at the Island of Sumatra, in the Indian

Ocean,) by certain persons to the plaintiff unknown and detained and pre-

vented from performing the said voyage, and thereby the said freight was

wholly lost to the plaintiff; of all which the said Insurance Company,” &c.

1 See ante, Vol. 1, §§ 557, 558.

2 For the proof of agency, see supra, tit. AGENCY, § 59-67. See also
ante, Vol. 1, §§ 416, 417; Brockelbank v. Sugrue, 5 C.& P. 21. Proof ofa
general agency is sufficient proof of authority to effect insurance on behalf
of the assured. Barlow v. Leckie, 4 J. B. Moore, 8.

3 See supra, tit. BILts or ExcHanGeE, § 158; Nicholson v. Croft, 2 Burr.
1188.

4 See ante, Vol. 1, § 275-805.

5 See ante, Vol. 1, § 292-294; Robertson v. Money, Ry. & M. 75; Uhde
v. Walters, 3 Campb. 16.

 

 
416 LAW OF EVIDENCE. [PART IV.

ance,! and which, therefore, cannot be presumed to have been
known and referred to by both parties, as the basis of the
contract; for it is on this ground only that evidence of usage
is admitted.?

§ 378. Secondly, as to the proof of Interest. The plain-
tiff’s interest in a ship may be shown, primd facie, by proof
of possession, and acts of ownership; which may be made
by the captain or other officer, or by any person having com-
petent knowledge of the facts, without the production of any
documentary evidence. But whenever the. title to a ship
comes strictly in question, no claim can be received in oppo-
sition to the modes of conveyance required by the statutes.*
Thus where the plaintiff claimed for a total loss as sole owner
of a ship, whose register stood in the names of himself and
another, parol evidence, offered to show that she was in fact
purchased by himself, as sole owner, was held inadmissible?
Where the interest is derived from a bill of sale, this docu-
ment must be produced and proved as in other cases ;® ac-
companied by evidence of the registry, where this is required
by statute, in order to render the other evidence admissible.’
But the certificate of registry is not alone sufficient to prove
the plaintiff’s interest in the ship, without proof of some
correspondent act of ownership. Whether it is conclusive
against the legal ownership of persons claiming title, but
whose names are not found therein, seems to depend on the
registry acts. In England it has been held conclusive; but

 

1 Gabay v. Lloyd, 3 B. & C. 793; Astor v. Union Ins. Co. 7 Cowen, 202 ;
Coit v. Commercial Ins. Co. 7 Johns. 885.

2 Eager v. Atlas Ins. Co. 14 Pick. 141.

3 Robertson ». French, 4 East, 130; Sutton «. Buck, 2 Taunt. 302;
Wendover v. Hogeboom, 7 Johns. 308; Amery v. Rogers, 1 Esp. 207;
Thomas v. Foyle, 5 Esp. 88.

4 Abbott on Shipping, p. 78, by Shee.

5 Ohl v. The Eagle Ins. Co. 4 Mason, 172.

6 Woodward v. Larkin, 3 Esp. 287.

7 4 Taunt. 657, per Gibbs, J.

8 Pirie v. Anderson, 4 Taunt. 652; 2 Phillips on Ins. p. 487; Flower »v.
Young, 3 Campb. 240.
PART Iv.] INSURANCE, 417

in the United States, an insurable interest has been held
sufficiently proved by evidence of a title at Common Law, in
a plaintiff whose name did not appear in the register. This
document, however, is not of itself evidence to charge a
defendant as owner of the ship, without proof that he sanc-
tioned and adopted it? Where the registry of a ship is re-
quired by law to be recorded in the custom-house, a certified
copy of the record is, as we have seen, admissible in evi-
dence.3

§ 379. It is not material, whether the interest of the as-
sured be legal or equitable. The interest of a trustee ces-
tui que trust, mortgagor, mortgagee, and of the owner of a
qualified property, or of a lien, is sufficient for this purpose.
So, of a lender on bottomry ; or of the borrower, so far as
regards the surplus value ; or, of a captor; or, of one entitled
to freight, or commissions; or, of the owner, notwithstanding
the charterer has covenanted either to return the ship, or pay
her value And under a general averment of interest, the
assured may prove any species of interest, either in the whole
or in any part, and recover accordingly.®

 

1 Camden v. Anderson, 5 T. R. 709; Abbott on Shipping, p. 63, n. (1),
by Story, J.; Id. p. 34, n. (2); Bixby v. The Franklin Ins. Co. 8 Pick. 86;
Lamb v. Durant, 12 Mass. 54; Taggard v. Loring, 16 Mass. 336; 2 Phillips
on Ins. p. 488; Sharp v. United Ins. Co. 14 Johns. 201.

2 Abbott on Shipping, p. 68, Story’s edit.; Frazer v. Hopkins, 2 Taunt.
5; Smith v. Fuge, 3 Campb. 456; Sharp v. United Ins. Co. 14 Johns. 201.

3 Ante, Vol. 1, § 484.

4 Marshall on Ins. p. 101-116, 719-721, (8d edit.) ; Higginson v. Dall, 13
Mass. 96; Oliver v. Greene, 3 Mass. 133; Gordon v. Mass. Ins. Co. 2 Pick.
249, 259; Rider v. Ocean Ins. Co. 20 Pick. 259; Bartlett v. Walter, 18 Mass.
267; Kenny v. Clarkson, 1 Johns. 385; Locke v. N. Amer. Ins. Co. 18
Mass. 61; Strong v. Manuf. Ins. Co. 10 Pick. 40; Holbrook v. Brown, 2 Mass.
280; Smith v. Williams, 2 Caines, Cas. 110. The interest of a respondentia
or bottomry creditor must be specially insured as such. Glover v. Black, 3
Burr. 1394; Pouverin v. Louisiana State Ins. Co. 4 Rob. Louis. R. 234; Put-
nam v. Mercantile Ins. Co. 5 Met. 386.

5 Marshall on Ins. p. 179, (3d edit.) See also Crowly v. Cohen, 3 B. &
Ad. 478. .
418 LAW OF EVIDENCE. [PART IV.

§ 380. The interest of the assured in the goods, may be
proved by any of the usual mercantile documents of title,
such as bills of sale; or of parcels; bills of lading, whether
the holder be the shipper or the indorsee ; invoices, with proof
that the goods were on board; bills of charges of outfit,
clearances and the like! Evidence of possession, also, and
of other acts of ownership, may be received in proof of inter-
est in the goods on board, as well as of interest in the ship2
And it is sufficient that the plaintiff was interested when the
risk commenced, though he had no interest when the policy
was effected’ If the defendant pays money into Court, this
is a conclusive admission of the contract, and of the plain-
tiff’s interest as alleged.* :

§ 381. Where the insurance is effected by an open policy,
the value of the plaintiff’s interest must be proved aliunde ;
but if it be a valued policy, the policy alone is primé facie
evidence of the value of the property insured.6 The usual
recital in the policy, of payment of the premium, is also suffi-
cient proof of that fact; but in the absence of such recital,
the plaintiff must prove it by other evidence.

 

1 Marshall on Ins. pp. 718, 724, (3d edit.) ; Russell v. Boehm, 2 Str. 1127;
Dickson v. Lodge, 1 Stark. R. 226; McAndrew »v. Bell, 1 Esp. 373; 2 Phil-
lips on Ins. p. 449-491. See, as to the indorsee ofa bill of lading, Newsom
" y. Thornton, 6 East, 41, per Ld. Ellenborough. But a bill of lading of the
outward cargo is not sufficient proof of interest in the return cargo. Beal v.
Pettit, 1 Wash. C. C. R. 241. Nor is a bill of lading, “‘ contents unknown,”
any evidence of the quantity of goods or of property in the consignee. Had-
dow v. Parry, 3 Taunt. 303. An authenticated copy of an official report of
the cargo of a ship, made pursuant to law, by an officer of the customs, is evi-
dence of the shipment. Flint v. Fleming, 1 B. & Ad. 45, 48; Johnson v.
Ward, 6 Esp. 47.

2 Supra, § 378; 2 Phillips on Ins. p. 489.

3 Rhind v. Wilkinson, 2 Taunt. 237.

4 See ante, Vol. 1,§ 205; Bell v. Ansley, 16 East, 141, 146.

5 Marshall on Ins. p. 719, (3d edit.); 2 Phillips on Ins. pp. 206-228,
491; Lewis v. Rucker, 2 Burr. 1171; Alsop v. Commercial Ins. Co. 1 Sum-
ner, 451. i

8 De Gaminde »v. Pigon, 4 Taunt. 246; Dalzell v. Mair, 1 Campb. 532.
PARTIV.] INSURANCE. 419

§ 382. Thirdly, as to the Inception of the Risk. This
applies to insurance upon a voyage named, and is proved by
any competent evidence, that the ship actually sailed, within
a reasonable time, upon the voyage intended.’ If the in-
surance is for one voyage, but the ship actually sails upon
another, the course of both voyages being the same to a cer-
tain point, the policy is discharged, though the loss happened
before the ship reached the dividing point.2, But if the ship
sails on the voyage insured, a deviation meditated but not
carried into effect, will not vitiate the policy.? And the sail-
ing must be voluntary; for if the ship, before the lading is
completed, be driven from her moorings by a storm, and be
lost, the averment of sailing is not considered as proved.
The risk on goods does not commence until goods are put on
board, at the place named ;° but the risk on freight may be
shown to have commenced, by evidence of a contract to put
the goods on board, the performance of which was prevented
by some of the perils insured against.6 If the risk never
commenced, the plaintiff, in an action upon the policy, and.
in the absence of fraud, may recover back the premium, upon
the common counts.’

 

1 Koster v. Inness, Ry. & M. 336; Cohen v. Hinckley, 2 Campb. 51.

2 Woolridge v. Boydell, 1 Doug. 16; Marsden v. Reid, 3 East, 572; 2
Phillips on Ins. p. 148 ; Seamens v. Loring, 1 Mason, 127.

3 Foster v. Wilmer, 2 Stra. 1249; Hare v. Travis, 7 B.& C.14. See 2
Phillips on Ins. ch. xi. xii.; Marshall on Ins. pp. 260, 278, (3d edit.) ; Lee v.
Gray, 7 Mass. 849 ; Coffin v. Newburyport Ins. Co. 9 Mass. 436; Hobart v.
Norton, 8 Pick. 159.

4 Abithol v. Bristow, 6 Taunt. 464.

5 Marshall on Ins. pp. 244, 245, 278, 724, (8d edit.) [In the absence of a
distinct statement in the policy of the port whence the voyage is to be made,
the risk will commence from a port where the vessel lay when the policy
was made, and where the property insured was taken on board. Folsom v,
Merchants’, &c. Ins. Co. 38 Maine, 414. A risk on goods to be shipped be-
tween two certain days does not cover goods shipped on either of those days.
Atkins v. Boylston, &c. Ins. Co. 5 Met. 439.]

6 Flint v. Fleming, 1 B. & Ad. 45; Davidson v. Willasey, 1 M. & 8.
313.

7 Penson v. Lee, 2 B. & P. 830; Penniman v. Tucker, 11 Mass. 66; Fos-
ter v. United States Ins. Co. 11 Pick. 85.
420 LAW OF EVIDENCE. [PART Iv.

§ 383. Fourthly, as to the performance of precedent Con-
ditions and compliance with Warranties All express war-
ranties, and all affirmative averments, are in the nature of
conditions precedent to the plaintiff’s right to recover; and
therefore must be strictly proved. Such are warranties that
the property is neutral; that the ship sailed at the time speci-
fied; that she departed with convoy; that she was of the
force named; and the like. The first of these, namely, the
neutral character of the property, being partly negatived in
its nature, is proved primd facie by general evidence, leaving
the contrary to be shown by the defendant. The acts of the
captain in carrying neutral colors, and in addressing himself
to the neutral consul while in port, and the like, are also ad-
missible for the shipper, as primd facie evidence of the neutral
character of the ship. If the warranty is that the ship shall
sail on or before a certain day, stress of weather, or an embargo
by the order of government, is no excuse for non-compliance
with the engagement.t It must also appear that the ship
actually set forward on the voyage, iit complete readiness for
sea. Therefore, an attempt to sail, and proceeding a mile or
two and then putting back, by reason of unfavorable weath-
er; or, proceeding with only part of the crew, the remainder
being engaged and ready to sail; or, dropping a few miles
down the river; is no compliance with this warranty.

 

1 [See post, § 399-401 and 406.]

2 Marshall on Ins. pp. 722, 723, (3d edit.) ; 2 Phillips on Ins. p. 498-502.

3 Archangelo v. Thompson, 2 Campb. 620. And see Bernardi v. Mot-
teaux, 2 Doug. 575.

4 Nelson v. Salvador, 1 M. & Malk. 809; Sanderson «. Busher, 4 Campb.
54,n.; Hore v. Whitmore, Cowp. 784. If the averment is that the ship
sailed after making the policy, and the proof is that she sailed before, the
variance is not material, provided the averment does not arise out of the
contract. Peppin v. Solomons, 5 T. R. 406. An embargo at the place of
rendezvous of a convoy, after the ship has actually sailed from her port,
saves the warranty. Larle v. Harris, 1 Doug. 357.

5 Moir v. Royal Ex. Ass. Co. 4 Campb. 84; 6 Taunt. 241; Graham v.
Barras, 3 N. & M. 125; 5 B. & Ad. 1011; Pettigrew v. Pringle, 3 B. & Ad.
514; Bowen v. The Hope Ins. Co. 20 Pick. 275; Robinson v. Manufactur-
ing Ins. Co. 1 Met. 143.
PART Iv.] INSURANCE. 421

§ 384. Compliance with a warranty to sail with convoy
may be proved by the official letters of the commander of
the convoy; or, by the log-book of the convoying ship of
war! And where the non-performance of this warranty
would have involved a breach of law, it will be presumed
that the law has been obeyed, until the contrary has been
shown? Sailing orders are generally necessary to the per-
formance of this warranty, if, by due diligence on the part
of the master, they could have been obtained But the
state of the weather is not a sufficient excuse for not join-
ing the convoy.

§ 385. Fifthly, as to the Loss. The plaintiff must also
prove that the property insured was lost, and that the loss
was not remotely but immediately caused by one of the perils
insured against. Whether the loss, which is proved, will
satisfy the averment, is a question for the Court; but the
averment itself must be proved. The certificate of a vice-
consul abroad is no evidence of the amount of the loss;®
nor is the protest of the captain admissible as original evi-
dence of the fact of loss, though it may be read to contra-
dict his testimony.’ If there is no proof of the amount of
the loss, the plaintiff will be entitled to nominal damages
only.8

§ 386. The loss of a ship may be shown not only by
direct proof, but by evidence of any circumstances incon-
sistent with the hypothesis of her safety; such as that,

 

1 Watson v. King, 4 Campb. 275; D’Israeli v. Jowett, 1 Esp. 427.

2 Thornton v. Lance, 4 Campb. 231.

3 Webb v. Thompson, 1 B. & P.5; Hibbert v. Pigon, 3 Doug. 224;
Anderson v. Pitcher, 2 B. & P. 164; Sanderson v. Busher, 4 Campb. 54,
note.

4 Sanderson v. Busher, 4 Campb. 54, note.

5 Abitbol v. Bristow, 6 Taunt. 464.

6 Waldron v. Combe, 3 Taunt. 162.

7 Senat v. Porter, 7 T. R. 158; Christian v. Combe, 2 Esp. 489.

8 Tanner v. Bennett, Ry. & M. 182. :

VOL. Il. 36
422 LAW OF EVIDENCE. [PART IV.

having sailed upon the voyage insured, no intelligence has
been received concerning her, either at her port of depart-
ure, or at her port of destination, both of which should be
resorted to,? although a reasonable time has elapsed; in
which case, the Jury will be advised to presume that she
foundered at sea2 If it has been reported, that she foun-
dered, but that the crew were saved, yet it will not be neces-
sary to call any of the crew.‘

§ 387. It must be shown that the peril insured against
was the immediate, and not the remote cause of the loss.
Causa proxima non remota spectatur. The loss must directly
arise from, and not remotely be occasioned or brought about,
by the peril.® Thus, where a peril of the sea occasioned
damage to the ship, which rendered repairs necessary, and
funds to provide these repairs, and in order to raise funds
the master, having no other resource, sold part of the goods
on board, it was held that the underwriter on the goods was -
not liable as for a loss by a peril of the sea; the want of
funds, and not the peril of the sea, being the immediate
cause of the loss. On the other hand, underwriters against
perils of the sea are liable for any loss immediately arising
from those perils, such as shipwreck, or collision, though it

 

1 Koster v. Jones, Ry. & M. 333; Cohen v.. Hinckley, 2 Campb. 51.

2 Twemlow v. Oswin, 2 Campb. 85. But see Marshall on Ins. p. 25, (3d
edit.)

8 Newby v. Read, Park on Ins. 106; Houstman v. Thornton, Holt’s Cas.
242; Paddock v. Franklin Ins. Co. 11 Pick. 227.

4 Koster v. Reed, 6 B. & C. 19.

5 Marshall on Ins. 491, (3d edit.) ; 1 Phillips on Ins. 283-290; 2 Phillips
on Ins. 194, 195; Peters v. The Warren Ins. Co. 14 Peters, R. 99; Colum-
bian Ins. Co. v. Lawrence, 10 Peters, R. 507; [Scripture v. Lowell, &c. Ins.
Co. 10 Cush. 356.]

6 Powell v. Gudgeon, 5 M. & S. 431, 437. So the extraordinary expense
of provisions, occasioned by delay during the making of repairs, or during
an embargo, is not recoverable against underwriters on the ship only. Mar- |
shall on Ins. 730, (3d edit.) Robertson v. Ewer, 1 T. R. 127. Yet a direct
loss of provisions would be covered by a policy on the ship, of which they
are ordinarily deemed a part. Marshall on Ins. 781; 1 Phillips on Ins. 71;
2 Phillips on Ins. 218.
PART Iv.] INSURANCE. 423

were remotely occasioned by the mismanagement, negli-
gence, or barratry of the master or mariners ;1 or by the neg-
ligent loading of the cargo.2 And if a ship, by stress of
weather, be driven ashore upon an enemy’s coast, and there
captured, it is a loss by capture, as the immediate cause, and
not by perils of the sea.®

§ 388. A loss by capture is proved by first showing a cap-
ture in fact, and then producing the sentence of condemna-
tion; the latter generally not being admissible until the
former is proved. And if it appear, that the capture was by
collusion between the master of the ship and the enemy, so
that a charge of barratry might be supported, yet it is still
also a loss by capture. An averment of loss by capture by

 

1 Walker v. Maitland, 5 B. & Ald. 171; Smith v. Scott, 4 Taunt. 126;
Bishop v. Pentland, 7 B. & C. 214; Heyman v. Parish, 2 Campb. 149;
Columbian Ins. Co. v. Lawrence, 10 Peters, R. 507; Patapsco Ins. Co. v.
Coulter, 3 Peters, R. 222. As to what constitutes a loss-by perils of the
sea, see Marshall on Ins. 487-494, (3d edit.) ; 1 Phillips on Ins. 245-256 ;
2 Phillips on Ins. 189-191 ; Montoya v. London Assur. Co. 4 Eng. L. & Eq.
R. 500, (Exch.) The exception of “ perils of the river,” in inland naviga-
tion, is equivalent to that of perils ofthe sea,in commerce on the ocean;
and is held to include losses occasioned by running on hidden snags and
sawyers, and by collisions rendered inevitable by the narrowness of the
channel. Eveleigh v. Sylvester, cited in 1 Harp. Law R. 263, 266; Charles-
ton & Col. Boat Co. v. Bason, Ib. See also Gordon »v. Little, 8 S. & R. 533;
Gordon v. Buchanan, 5 Yerg. 71; Smyrl v. Niolon, 2 Bailey, 421; Williams
v. Grant, 1 Conn. R. 487; Turner v. Wilson, 7 Yerg. 340. [Underwriters,
insuring a vessel against the perils of the sea, are bound to pay the insured
the amount paid by him to the owners of another vessel for damages suffered
in a collision with the vessel insured; occasioned by the negligence of the
master and crew of the latter vessel. Nelson v. Suffolk Ins. Co. 8 Cush.
477; Hale v. Washington Ins. Co. 2 Story, R. 176; Matthews v. Howard
Ins. Co. 13 Barb. 234. But see conira, General Mut. Ins. Co. v. Sherwood,
14 How. U. S. 351.]

2 Redman v. Wilson, 14 M. & W. 476.

3 Green v. Elmslie, Peake’s Cas. 212.

4 Marshall v. Parker, 2 Campb. 69; Visger v. Prescott, 2 Esp. 184.
Lloyd’s books are evidence of a capture, though not alone proof of notice
to the assured. Abel v. Potts, 3 Esp. 242.

5 Archangelo v. Thompson, 2 Campb. 620. See also Goldschmidt »v.
Whitmore, 3 Taunt. 508.
424 LAW OF EVIDENCE. [PART Iv.

enemies unknown, is not supported by proof of seizure for
breach of the revenue laws of a foreign government.1 But
a general averment of loss by seizure and confiscation by a
foreign government, is proved by evidence of the seizure by
the officers of the government, without putting in the sentence
of condemnation? And in the case of seizure of the goods
by a foreign government for a cause not affecting the ship,
the incidental and consequent detention of the ship is not
provable against the underwriters on the ship only, as a loss
by capture and detention?

§ 389. If the voyage was legalized or protected by a license,
the license, if existing, must be produced and proved, and
shown to apply to the voyage in question.* If this docu-
ment is lost, it may be proved by secondary evidence, as in
other cases.5 If it was granted upon condition, the plaintiff
must show that the condition has been performed. And if
it was a foreign license, it is a necessary part of the second-
ary evidence not only to show that the party had a paper,
purporting to be such a document, but to give some circum-
stantial proof that it was genuine; such as, that it was
received from the hands of a proper officer, or that it had
been seen and respected by the officers of the government
which issued it.’

§ 390. A loss by barratry is proved by evidence of any
species of fraud, knavery, or criminal conduct, or wilful
breach of duty in the master or mariners, by which the
freighters or owners are injured’ If the master should pro-

 

1 Matthie v. Potts, 3 B.& P. 23.

2 Carruthers v. Gray, 3 Campb. 142.

3 Bradford v. Levy, 2 C. & P. 187; Ry. & M. 331.

4 Barlow v. McIntosh, 12 East, 311.

5 Ante, Vol. 1, §§ 84, 509, 560, 575; Rhind v. Wilkinson, 2 Taunt. 237;
Kensington v. Inglis, 8 East, 273; Eyre v, Palsgrave, 2 Campb. 605.

6 Camelo v. Britten, 4 B. & Ald. 184.

7 Everth v. Tunno, 1 Stark. R. 508.

8 Vallejo v. Wheeler, Cowp. 156, per Aston, J.; Lockyer v. Offley, 1 T.
PART IV.] INSURANCE, 425

ceed on his voyage in the face of inevitable danger of cap-
ture, it is barratry.! It is sufficient for the plaintiff, in proof
of barratry by the master, to prove that the misconduct was
that of the person who acted as master, and was in fact
treated as such, without either showing negatively, that he
was not the owner, or affirmatively, that some other person
was the owner. But it must appear that the act was done
from a fraudulent motive, or with a criminal intent, or in
known violation of duty ; for if it was well intended, though
injudicious and disastrous in its results, it is not barratry.
If the property was barratrously carried into an enemy’s
blockaded port, and lawfully condemned as enemy’s prop-
erty, it does not disprove the allegation, that the loss was
occasioned by the barratry of the master, in carrying the
property to places unknown, whereby it was confiscated.*

§ 391. A loss by stranding is proved by evidence that the
ship has been forced on shore, or on rocks or piles, by some
unforeseen accident, and not in the ordinary course of navi-
gation, and there rested, or was fixed, so that the voyage was
interrupted. A mere temporary touching of the ground in
passing over it, or grounding in a tide harbor in the place
intended, is not a stranding, even though damage ensues,
from some hard substance on the bottom. And where a

 

R. 259, per Willes, J.; Marshall on Ins. ch. 12, § 6; 1 Phillips on Ins. 258;
Stone v. National Ins. Co. 19 Pick. 34, 36, 37, per Putnam, J.; Wiggin v.
Amory, 14 Mass. 1; American Ins. Co. v. Dunham,15 Wend. 9. Barratry
may be committed by the general owner, as against the freighter. Vallejo
v. Wheeler, supra. [As to what constitutes barratry, see Lawton v. Sun
Mutual Ins. Co. 2 Cush. 500; and cases there cited. Patapsco Ins. Co. ».
Coulter, 3 Pet. 222, 234.]

1 Earle v. Rowcroft, 8 East, 126; Richardson v. Maine F. & M. Ins. Co.
6 Mass. 102, 117.

2 Ross v. Hunter, 4 T. R. 33.

3 Marshall on Ins. 521, (3d edit.) ; Phyn v. Royal Exch. Ass. Co. 7 T. RB.
505. Gross malversation is evidence of fraud. Ibid.; Heyman v. Parish,
2 Campb. 150; Earle v. Rowcroft, 8 East, 126. See also Hucks v. Thorn-
ton, Holt’s Cas. 30; Wiggin v. Amory, 14 Mass. 1.

4 Goldschmidt v. Whitmore, 3 Taunt. 508.

5 Harman v. Vaux, 3 Campb. 429; McDougle v. Royal Exch. Ass. Co,

36 *
426 LAW OF EVIDENCE. [PART IV.

ship was run aground by collision with two others, in the
Thames, this is said to have been held no stranding.’ If the
stranding is complete, the degree of damage, and the dura-
tion of the time of the vessel’s remaining on shore, are not
material.?

§ 392. The amount of the loss, if it is total, may be shown,
as we have already seen, by the policy, with proof of some
interest, if it is a valued policy; or by any other competent
evidence, if it is not Shipwreck is often, but not neces-
sarily, evidence of a total loss of the ship. It depends upon
the nature and extent of the injury or damage thereby occa-
sioned. If the loss is not actually total, but the enterprise
or voyage insured is defeated, or if the property insured
specifically remains, but is damaged to a fatal extent, as for
example, to more than one half of its value, this, though in
fact it may be but a partial loss, may be made constructively
total by an abandonment of the property by the assured, to
the underwriter. When, therefore, the assured goes for a

 

4 M. & S. 503; Kingsford v. Marshall, 8 Bing. 458; Wells v. Hopwood,
B. & D. 20; Bishop v. Pentland, 7 B. & C. 224; 2 Phillips on Ins. 330-
335; Marshall on Ins. 232, 238, (3d edit.)

1 Baring v. Henkle, Marshall on Ins. 232, (3d edit.) Sed quere.

2 Harman v. Vaux, 3 Campb.:430; Baker v. Towry, 1 Stark. R. 436.

3 See supra, § 381; 3 Mason, 71. The value of goods, in an open policy,
is made up of the invoice price, together with the premium and commis-
sions. Marshall on Ins. 629, (3d edit.)

4 Marshall on Ins. 566, 567, 592, (3d edit.) ; 1 Phillips on Ins. 382-388,
401-406, 441-445; 3 Kent, Comm. 318-335; Bradlie v. The Maryland
Insurance Co. 12 Peters, 378. The law of abandonment was fully dis-
cussed, and all the cases reviewed by Mr. Justice Story, in his learned
opinion in Peele v. Merchants’ Ins. Co. 8 Mason, 27-65. The general
principle, extracted from all the cases, in regard to ships, he thus states : —
“The right of abandonment has been admitted to exist, where there is a
forcible dispossession or ouster of the owner of the ship, as in cases of capture;
where there is a moral restraint or detention, which deprives the owner of
the free use of the ship, as in cases of embargoes, blockades, and arrests by
sovereign authority ; where there is a present total loss of the physical pos-
session and use of the ship, as in case of submersion ; where there is a total
loss of the ship for the voyage, as in case of shipwreck, so that the ship can-
PART Iv.] INSURANCE. 427

constructively total loss, he must prove, first, the extent of
the loss in fact, as exceeding half the value, or as being

not be repaired for the voyage in the port where the disaster happens; and,
lastly, where the injury is so extensive, that by reason of it the ship is useless,
and yet the necessary repairs would exceed her present value. None of these
cases, will, I imagine, be disputed. If there be any general principle that
pervades and governs them, it séems to be this, that the right to abandon
exists, whenever from the circumstances of the case, the ship, for all the
useful purposes of a ship for the voyage, is, for the present, gone from the
control of the owner, and the time when she will be restored to him ina
state to resume the voyage is uncertain, or unreasonably distant, or the risk
and expense are disproportioned to the expected benefits and objects of the
voyage. In such a case, the law deems the ship, though having a physical
existence, as ceasing to exist for purposes of utility, and therefore subjects
her to be treated as lost.” See 3 Mason, 65. See also Am. Ins. Co. v.
Ogden, 15 Wend. 532. Whether an abandonment is necessary, where the
ship or goods have been necessarily sold by the master, guere; and see
Roux v. Salvador, 1 Bing. N. C. 526, that it is; and Gordon v. Massachusetts
F. & M. Ins. Co. 2 Pick. 249, 261, 267, and cases there cited; approved in
5 Peters, 623, [Patapsco Ins. Co. v. Southgate,] that it is not. [In Massa-
chusetts the rule is held to be that when the right is claimed to abandon for a
constructive total loss, in consequence of a damage to more than half the value
of the vessel by any peril insured against, the valuation in the policy is conclu-
sive. Allen ». Commercial Ins. Co. 1 Gray, 154. And there must first be a de-
duction of one third new for old. Ibid. Mr. Phillips states, that the rule seems
to be that the value of the vessel, when repaired, is to be taken, when the
policy contains no express provision to. the contrary, and not the value ex-
pressed in the policy. 2 Phillips on Ins. (3d edit.) § 1539, and cases cited.
Greely v. Tremont Ins. Co. 9 Cush. 415.

If a vessel arrives at her port of destination damaged by perils insured
against to an amount less than half her valuation in the policy, deducting from
the requisite repairs one third new for old, and is sold by the master, in the
presence of the owners, because of the impossibility of obtaining the funds
necessary to repair her, the owners are not entitled to abandon her to the
underwriter and recover as for .a total loss. Allen v. Commercial Ins. Co.
1 Gray, 154. Butif the vessel is at a port of necessity, needing repairs, and
the master finds it impossible to obtain the requisite funds for her repairs by
bottomry or otherwise, or to consult the owners, he may sell, and if no lien
has been created which deprives the underwriters of the rights which it is
the object of the abandonment to secure, the owners may abandon and re-
cover for a total loss, though the costs of repair be less than fifty per cent.
of the value of the vessel. By Thomas, J., in Allen y. Commercial Ins. Co.
ubi supra. When the sale and abandonment has been made for certain
428 LAW OF EVIDENCE. [PART Lv.

destructive of the enterprise ; and secondly, his abandonment
of the property to the underwriters. And in estimating the
cost of repairs, in order to ascertain the right to abandon, if
by reason of the perils insured against, it has become neces-
sary to replace some decayed timbers with new ones, which,
but for the injury, were strong enough for the voyage, the
expense of such repairs is to be taken into the estimate ; the
rule in this respect being, that, when the injury which the
insurers are obliged to make. good, is the cause of the de-
cayed parts requiring repairs, then the insured may abandon.
And more generally speaking, the rule is stated to be, that
“ If the vessel is so injured by a peril insured against, as to
be useless to the owner, except at an expense that no prudent
man, if uninsured, would incur,— an expense far exceeding
her value when repaired, — this is, to all intents and purposes,
a total loss.”? But if the abandonment has been accepted,
this supersedes the necessity of proof of the loss ;® and long
acquiescence without objection, under circumstances calling
for some action on the part of the underwriters, is evidence
from which an acceptance may be inferred by the Jury.*

 

stated reasons, it is not competent to show that other causes existed than
those for which the sale and abandonment were in fact made. Allen v. Com-
mercial Ins. Co. ubi supra. ;

Where the policy is upon cargo, after any considerable portion of the
goods insured, though less than half the value (in this case thirty-eight per
cent.) has arrived at the port of destination, and been landed in a perfect
state, the insured cannot abandon and recover as for a total loss. Forbes v.
Manufac. Ins. Co. 1 Gray, 371. The owner of goods jettisoned for the com-
mon benefit, may recover of the underwriters without first demanding con-
tribution of the other interests benefited by the jettison; and if the policy
is a valued one, the value in the policy is to prevail, although it exceed the
market value of the goods at their place of destination. Ibid.]

1 Hyde v. Louis. State Ins. Co. 1 Mart. 410, N. S.; 2 Phil. on Ins, 291,
cited and affirmed in Phillips v. Naire, 11 Jur. 455.

2 Irving v. Manning, 2 M. G. & Sc. 784, 788, per Pollock, C. B.

3 1 Phillips on Ins. 449,450; Smith v. Robertson, 2 Dow, 474; Brotherston
v. Barber, 5 M. & S. 418.

4 Hudson v. Harrison, 3 B. & B. 97; 3 Moore, 288, 8. C.; Smith v. Rob-
ertson, 2 Dow, 474. The observation of Story, J., in Peele v. Merchants
Ins. Co. 3 Mason, 81, that the silence of the underwriter is not, per
PART Iv.] INSURANCE. 429

§ 393. The amount of a loss may be proved by an adjust-
ment, signed by the underwriters, which is usually indorsed
on the back of the policy. But the form of it is not material ;
for the acceptance of an abandonment is an admission of the
loss as total.!. In whatever form the adjustment may be, it
is an admission of all the facts, necessary to be proved by the
assured to entitle him to recover in an action on the policy.
It is not, however, conclusive; but, like other primd facie
evidence, it throws the burden of proof on the other party,
to impeach it; which he may do by showing that it was
made under a mistake of fact, or procured by fraud in the
assured or his agent.2_ In cases proper for general average, it
is the duty of the master, on his arrival at the foreign port of
destination, to have the loss adjusted by a competent person,
according to the usage and law of the port; and being thus
fairly made, it is conclusive and binding upon all the parties
concerned.?

 

se, proof of his acceptance, is not conceived to impugn the rule in the text.
See ante, Vol. 1,§ 197; Peele v. Suffolk Ins. Co. 7 Pick. 254; Reynolds v.
Ocean Ins. Co. 22 Pick. 191; 1 Met. 160. [A general average loss upon
the subject insured, is to be paid in full by the insurer, without deduction
and without reference to the question whether the vessel, if it happen to be
a vessel, can or cannot be repaired, and at what cost in reference to her
value. The distinguishing characteristic of such a loss is that it is volunta-
rily incurred by the owner of one of the subjects at risk for the benefit of
all. The cutting away the masts of a vessel, and the consequent damage,
are general average charges, although the vessel is in ballast, and there is
therefore neither freight nor cargo to contribute. Greely v. Tremont Ins.
Co. 9 Cush. 415.]

1 Bell v. Smith, 2 Johns. 98. An award of arbitrators is an adjustment.
Newburyport Ins. Co. v. Oliver, 8 Mass. 402.

2 See ante, Vol. 1, §§ 209, 212; 3 Kent, Comm. 339; 1 Phillips on Ins.
500-502; Marshall on Ins. 642-647, (3d edit.) and cases there cited; Dow
v. Smith, 1 Caines, R. 32; Bilbie v. Lumley, 2 East, 469; Faugier v. Hal-
lett, 2 Johns. Cas. 283; Haigh v. De la Cour, 8 Campb. 319. An agent
who has authority to subscribe a policy, has also authority to sign an adjust-
ment of loss. Richardson ». Anderson, 1 Campb. 43, n.; The Chesapeake
Ins. Co. v. Stark, 6 Cranch, 268.

3 Strong v. New York Firem. Ins. Co. 11 Johns. 323; Simonds v. White,
2B. & C. 805; 4 Dowl. & Ry. 375; Daglish v. Davidson, 5 Dowl. & Ry.
6; Loring v. Neptune Ins. Co. 20 Pick. 411. But it does not bar the ship-
430 LAW OF EVIDENCE. [PART IV.

§ 394. The clause usually inserted in policies, that the
money is to be paid in a certain number of days after pre-
liminary proof of loss, is liberally expounded, requiring only
the best evidence of the fact in possession of the party at
the time. Proof, in the strict and legal sense, is not required.
Thus, the protest of the master, or a eopy of the letter from
him to the correspondents of the owner transmitted by them
to the owner, and stating the loss,? or the report by a pilot
of the capture of the ship,? have been held sufficient, that
being the best evidence the party possessed.* Under a policy
containing this clause, proof of the loss alone has been held
sufficient, without any proof of interest ;> but if evidence of
interest is required, the production of the usual mercantile
documents, such as the bill of lading, invoice, bill of parcels,
and the like, is sufficient.6 And whatever be the nature of
the preliminary proof, if the underwriter does ‘not object to
its, sufficiency at the time it is exhibited, but refuses to pay
the loss on some other specified ground, the objection of in-
sufficiency in the proof is waived.’

§ 395. The specific defences usually made to an action on
a marine policy, are of two classes: namely,—(1.) Misrepre-
sentation or Concealment of material facts, by the assured,
during the time of treating for the policy ;—(2.) Breach of
Warranty.

§ 396. And first, as to Misrepresentation and Conceal-

 

owner from claiming of the underwriter a loss not included in the foreign
adjustment. Thornton v. United States Ins. Co. 3 Fairf. 150; 8 Kent,
Comm. 224.

1 Lenox v. United Ins. Co. 3 Johns. Cas. 224.

2 Lawrence v. Ocean Ins. Co. 11 Johns. 241.

3 Munson v. New Eng. Ins. Co. 4 Mass. 88.

4 Tbid. See also Barker v. Phenix Ins. Co. 8 Johns. 307; Lovering v.
Mercantile Ins. Co. 12 Pick. 348.

5 Talcott v. Marine Ins. Co. 2 Johns. 130.

6 Johnston v. Columbian Ins. Co. 7 Johns. 815.

7 Voss v. Robinson, 9 Johns. 192; Martin v. Fishing Ins. Co. 20 Pick.
389.
PART Iv.] INSURANCE. 431

ment. As this contract requires the highest degree of good
faith, and the most delicate integrity, the assured is held bound
to communicate to the underwriter, at the time of the treaty,
every fact which is in truth material to the risk, and within
his knowledge, whether he deems it material to the risk or
not; and all the information he possesses, in regard to mate-
rial facts, though he does not know or believe it to be true,
and it proves to be false.1 And where there are successive
underwriters on the same policy, a misrepresentation to the
first has been held a misrepresentation to all.2_ Nor does in-
nocency of intention, or mistake, on the part of the assured,
make any difference ; for the underwriter is equally injured,
whether he was misled through ignorance or fraud, and the
policy, in either case, is void But a representation, though
untrue, will not avoid the policy, if the underwriter is not
deceived by it; as, where a ship is cleared for one port, with
liberty to touch at an intermediate port, but intending to go
direct to the port of ultimate destination, such being the
known and uniform course of trade at the time, for the sake
of avoiding the operation of certain foreign regulations.!
And it is in all cases sufficient if the representation be true
in substance. If it is made by an agent, he also is bound
to communicate all material facts within his own knowl-
edge, and all the information he has received, in the same
manner as if he were the principal; and this, whether the

 

1 Lynch v. Hamilton, 3 Taunt. 37; Marshall on Ins. 449-478, (3d. edit.) ;
1 Phillips on Ins. ch. vii.; Alston v. Mechanics’ Ins. Co. 4 Hill, N. Y. Rep.
329; Bryant v. Ocean Ins. Co. 22 Pick. 200; Curry v. Com’th Ins. Co, 10
Pick. 535; Seton v. Low, 1 Johns. Cas. 1.

2 Barber v. Fletcher, 1 Doug. 305; Marsden ». Reid, 3 East, 573; 1 Phil-
lips on Ins. 84; Pawson v. Watson, Cowp. 787; Marshall on Ins. 454 (3d
ed.) But not as to an underwriter on a different policy, though on the same
tisk. Elting v. Scott, 2 Johns. 157. The doctrine of the text, however,
has been questioned. See Forrester v. Pigou, 1 M. & 8.9; Brine v. Feather-
stone, 4 Taunt. 871.

3 Bryant v. Ocean Ins. Co. 22 Pick. 200; Clark v. Manuf. Ins. Co. 2 W.
& M. 472; 8 How. S.C. R. 235, 8. C.

4 Planche v. Fletcher, 1 Doug. 251.
482 LAW OF EVIDENCE. [PART IV.

principal had knowledge or information of the facts or
not.

§ 397, On the other hand, the assured is not bound to state
his opinions, or belief or conclusions, respecting the facts com-
municated; nor to communicate matters which lessen the
risk; or which are known, or ought to be known, to the
underwriter; or which are equally open to both parties; or
which are general topics of speculation; or are subjects of
warranty. And mere silence concerning a material fact
known to the underwriter, is not a culpable concealment,
if no inquiry is made on the subject.2 The question, whether
the facts not disclosed were material to the risk, is for the
Jury to determine;* and to this point the opinions of others,
however experienced in sea risks, are not admissible,’ un-
less, perhaps, where the materiality is purely a question of
science.®

§ 898. The defence of concealment being nearly allied to
the charge of fraud, the burden of proof is upon the under-
writers, to establish both the existence of the fact concealed,
and its materiality to the risk; but the latter may be inferred
from the nature of the fact itself’ IPfthe fact concealed was

 

1 Marshall on Ins. 464, (3d ed.) The representation by a broker, made
at the time of treating for the policy, is binding on the assured, unless it
is withdrawn or qualified before the execution of the policy. Edwards v.
Footner, 1 Campb. 530.

2 Marshall on Ins. 453-460, 472, 473, (8d edit.) ; Walden v. New York
Ins. Co. 12 Johns. 128; Bell v. Bell, 2 Campb. 475, 479; 1 Phillips on
Ins. 103.

3 Green v. Merchants’ Ins. Co. 10 Pick. 402. And see Laidlow v. Or-
gan, 2 Wheat. 178, 195.

4 Littledale v, Dixon, 1 New Rep. 151; (4B. & P. 151); McDowell v.
Fraser, 1 Doug. 260; New York Ins. Co. v. Walden, 12 Johns. 513.

5 See ante, Vol. 1, § 441.

6 Berthon v. Loughman, 2 Stark. R. 258; 2 Stark. Evid. 649.

7 Tidmarsh v. Washington Ins. Co. 4 Mason, 489, 441, per Story, J.;
Fiske v. New England Ins. Co. 15 Pick. 310, 816; 2 Phillips on Ins. 504;
Ante, Vol. 1, §§ 34, 85, 80.
PART IV.] INSURANCE, 433

a matter of general notoriety in the place of residence of the
assured, this may be shown to the Jury, as tending to prove
that the assured had knowledge of the fact.!

§ 399. Secondly, as to breach of warranty. Besides the
express warranties, frequently inserted in policies of insur-
ance, such as, that the ship was safe, or sailed, or was to sail
on a given day, or should sail with convoy, or that the prop-
erty was neutral; there are certain warranties implied by law
in every contract of this sort, namely, that the ship shall be
seaworthy when she sails; that she shall be documented and
navigated in conformity with her national character, and with
reasonable skill and care; that the voyage is lawful and shall
be lawfully performed; and that it shall be pursued in the
usual course, without wilful deviation. A breach in any of
these, is a valid defence to an action on the policy.?

§ 400. The warranty of seaworthiness imports that the ship
is stanch and sound, of sufficient materials and construction,
with sufficient sails, tackle, rigging, cables, anchors, stores,
and supplies, a captain of competent skill and capacity, a
competent and sufficient crew, a pilot, when necessary, and,
generally, that she is in every respect fit for the voyage in-
sured.3 And neither the innocence nor ignorance of the
insured, nor the knowledge of the underwriter, will excuse a
breach of this warranty. The beginning of the risk is the
period to which this warranty relates. If the vessel subse-
quently becomes unseaworthy, the warranty is not broken, if
the assured uses his best endeavor to remedy the defect; and
of a neglect to do this, the underwriter can avail himself only
when a loss has occurred in consequence thereof.

 

1 2 Phillips on Ins. 505; Livingston v. Delafield, 3 Caines, R. 51-53;
Brander v. Ferriday, 16 Louis. 296; Anie, Vol. 1, § 138.

2 Marshall on Ins. 353, 354, (3d edit.) ; 1 Phillips on Ins. 112, 113; Pad-

dock v. Franklin Ins. Co. 11 Pick. 227; Stocker v. Merrimack Ins. Co. 6

. Mass. 220; Cleveland v. Union Ins. Co. 8 Mass. 308.

3 1 Phillips on Ins. ch. 7, §§ 1,2; Marshall on Ins. 146-160, (3d edit.)

4 Marshall on Ins. 152-157, (8d edit.); Park on Ins. 343.

5 1 Phillips on Ins. 117, 118; Deblois v. Ocean Ins. Co. 16 Pick. 303;

VOL. It. 37
434 LAW OF EVIDENCE. [PART Ly.

§ 401. Where unseaworthiness of the ship is relied on, as
a non-compliance with an implied warranty, the ship will be
presumed seaworthy, and to continue so, until the contrary
is proved by the underwriter, or shown from the evidence
adduced on the other side And this may not only be
shown by any competent direct evidence, but may be proved,
inferentially, by evidence of the bad condition of the ship
soon after sailing, without the occurrence of any new and
sufficient cause.2 After proof of her actual condition, ex-
perienced shipwrights, who never saw her, may pe asked
their opinion, whether, upon the facts sworn to, she was sea-
worthy or not. Buta sentence of condemnation for unsea-
worthiness, in a foreign Vice-Admiralty Court, after a sur-
vey, though conclusive to prove the fact of condemnation, has
been held inadmissible as evidence of the fact recited in it,

 

Weir v. Aberdeen, 2 B. & Ald. 320; Starbuck v. New England Ins. Co. 19
Pick. 198; Paddock v. Franklin Ins. Co. 11 Pick. 227; Copeland v. New
Eng. Ins. Co. 2 Met. 482; Watson v. Clark, 1 Dow, 344; Hollingsworth v.
Brodrick, 7 Ad. & El. 40; 2°N. & P. 608; 1 Jur. 430; [Deshon v. Mer-
chants’ Ins. Co. 11 Met. 199. The word “ seaworthy ” does not necessarily
mean that the ship is in a state completely fit for sea navigation, but includes
in it a fitness for present navigation, either on a sea or river, if about to sail,
or sailing on either, and a condition of repair and equipment fit for such a
port, if she is then in port. Small v. Gibson, 3 Eng. Law & Eq. 299; af-
firmed in the House of Lords, 24 Ib. 16. In a time policy there is no im-
plied warranty or condition that the vessel is seaworthy at the commencement
of the risk or term, wherever she happens to be, or in whatever circum-
stances she is placed at the time. The rule is otherwise in a voyage policy.
Ibid. See Jones v. Insurance Co. 2 Wallace, Jr. 278.]

1 Parker v. Potts, 3 Dow, 23; Taylor v. Lowell, 3 Mass. 347; Barnewall
v. Church, 1 Caines, R. 234, 246 ; Paddock v. Franklin Ins. Co. 11 Pick. 227,
236,237; Martin v. Fishing Ins. Co. 20 Pick. 389; Talcot v. Commercial
Ins. Co. 2 Johns. 124. But see Tidmarsh v. Washington Ins. Co. 4 Mason,
441, per Story, J. If the underwriters admit, in the policy, that the ship is
seaworthy, they are bound by the admission, and cannot dispute the sea-
worthiness. Parfitt v. Thompson, 138 M. & W. 392.

2 Marshall on Ins. 157; Watson v. Clark, 1 Dow, 344; Parker v. Potts, 3
Dow, 23; Douglas v. Scougall, 4 Dow, 269; Park on Ins. 833; 1 Phillips on
Ins. 116.

3 Beckwith v. Sydebotham, 1 Campb. 117; Thornton v. Royal Exch. Co.
Peake’s Cas. 25; Ante, Vol. 1, § 440.
PART IV.] INSURANCE. 435

that from prior defects, unseaworthiness might be presumed ;
nor are the reports of surveyors abroad, admissible evidence
of the facts contained in them.

§ 402. If the defence rest on the violation of law by the
assured, whether in the object or the conduct of the voyage,
such as, non-compliance with the convoy act, or destination
to a hostile port; or, on any neglect of duty in the master ;
the burden of proof is on the underwriter; it being always
presumed that the law has been observed, and that duty has
been done, until the contrary is shown.? The want of
neutral character is usually shown by a decree of condem-
nation for that cause; and to this point, the sentence of a
foreign tribunal of competent jurisdiction, is, as we have
seen, conclusive. The fabrication and spoliation of docu-
ments and papers are also admissible evidence to the same
point, though not conclusive in law.* If the defendant would
impugn the plaintiff’s right to recover for a loss by capture,
on the ground that the sentence of condemnation, rendered
in a foreign Court, appears to have been founded' on the
want of documents, not required by the law of nations,
which the plaintiff ought to have provided; the burden of
proof is on the defendant, to show the foreign law or treaty,
which rendered it necessary for the plaintiff to provide such
documents. 5

§ 403. The defence of deviation is made out by proof that
there has been a voluntary departure from, or delay in, the
usual and regular course of the voyage insured, without
necessity or reasonable cause. The ordinary causes of neces-

 

1 Marshall on Ins. 151, 152, (3d edit.); Wright v. Barnard, Id. p. 152;
Dorr v. Pacific Ins. Co. 7 Wheat. 581; Watson v. North Amer. Ins. Co. 2
Wash. C. C. R. 152; Saltus v. Commercial Ins. Co. 10 Johns. 58.

2 Thornton v. Lance, 4 Campb. 231; Ante, Vol. 1, §§ 34, 35, 80, 81; 2
Phillips on Ins. 503, 504.

3 Ante, Vol. 1, § 541.

4 Anite, Vol. 1, § 37.

5 Le Cheminant v. Pearson, 4 Taunt. 367.

7
436 LAW OF EVIDENCE. [PART Iv.

sity, which justify a deviation, are, stress of weather; want
of necessary repairs, or men; to join convoy; to succor ships
in distress; to avoid capture, or detention; sickness of the
captain or crew; mutiny; and the like And hence the
objects or causes of deviation are distributed into two gen-
eral classes, namely, first to save life, and secondly to pre-
serve the property intrusted to the master’s care.”

§ 404, In the seconp prac, as to InsuRANCE aGaInsT Fire.
Here, the same general principles apply, as in the case of
Marine Insurance. The declaration contains similar allega-
tions as to the contract, the performance of conditions, and
the loss; and the points to which the evidence is to be
applied are generally the same, differing only so far as the
subjects differ in their nature. The policy is to be produced
and proved as in other cases, together with proof of the pay-
ment of the premium, and of the plaintiff’s interest in the
property, of his compliance with all the conditions precedent,
and of the loss, by fire, within the period limited in the
policy?

 

1 Marshall on Ins. 177-206, (3d ed.) ; 1 Phillips on Ins. 179-216; Coffin
v. Newburyport Ins. Co. 9 Mass. 486 ; Stocker v. Harris, 3 Mass. 409. Put-
ting into a port to put a vessel in good trim, if it could not be conveniently
done at sea, is not a deviation. Chase v. Eagle Ins. Co.5 Pick. 51.

2 Turner v. Protection Ins. Co. 12 Shepl. 515.

3 See Ellis on Fire and Life Insurance, pp. 24-58, 61-66, 93, 94, in the
Law Library, Vol. 4; 3 Kent, Comm. 370-876; Lawrence v. Columbian
Ins. Co. 2 Pet. 25; 10 Pet. 507.

The following is the usual form of a count upon a valued Fire Policy :—
“ For that the plaintiff, on , was interested in a certain dwelling-house,
in , then occupied by him, to the value of —— dollars, and so continued
interested until the destruction of said house by fire, as hereinafter men-
tioned : — and the said (defendants), on the same day, in consideration of a
premium in money then and there paid to them therefor by the plaintiff,
made a policy of insurance upon the said dwelling-house, and thereby prom-
ised the plaintiff to insure dollars thereon, from said day of
until the day of , against all such immediate loss or damage as
should happen to said dwelling-house by fire, other than fire happening by
means of any invasion, insurrection, riot, or civil commotion, or of any mili-
tary or usurped power, to the amount aforesaid, to be paid to the plaintiff in

 

 

 

 

 

 

 
PART IV.] INSURANCE, 437

§ 405. The proof of loss must show an actual ignition
by fire; damage by heat alone, without actual ignition, not
being covered by the policy. And as to the plaintiff’s inter-

 

sixty days after notice and proof of the same; upon condition that the plain-
tiff, in case of such loss, should forthwith give notice thereof to said Com-
pany ; and as soon thereafter as possible should deliver in a particular ac-
count thereof under his hand, and verified by his oath or affirmation; and
if required should produce his books of account and other proper vouchers ;
and should declare on oath whether any and what other insurance was made
upon said property; and should procure a certificate under the hand of a
magistrate, notary-public, or clergyman, (most contiguous to the place of the
fire, and not concerned in the loss, nor related to the plaintiff,) that he was,
at the time of certifying, acquainted with the character and circumstances of
the plaintiff, and knew, or verily believed that he really, and by misfortune,
and without fraud or evil practice, had sustained by such fire, loss and dam-
age to the amount therein mentioned :— and the plaintiff avers that after-
wards and before the expiration of the time limited in said policy, to wit, on
the day of , the said dwelling-house was accidentally, and by mis-
fortutie, totally consumed by fire; of which loss the plaintiff forthwith gave
notice to said (defendants), and as soon as possible thereafter, to wit, on ——,
delivered to them a particular account thereof, under his hand, and verified
by his oath, and did at the same time declare on his oath that no other in-:
surance was made on said property ; [except J and afterwards on 7
did procure a certificate under the hand of [A. B.] Esquire, a magistrate
most contiguous to the place of said fire, not concerned in said loss, nor
related to the plaintiff, that he was then acquainted with the character
and circumstances of the plaintiff, and verily believed that he really,
and by misfortune, had sustained, by said fire, loss and damage to the
amount of the’ sum in said certificate mentioned, to wit, ——, and on the
same day the plaintiff produced and delivered said certificate to the said
(defendants). Yet, though requested, and though sixty days after such
notice and proof of said loss have elapsed, the said (defendanis) have never
paid either of the sums aforesaid to the plaintiff,” &c. See, as to stating the
limitations and qualifications of the contract, 1 Chitty’s Pl. 267-269, 316;
Clark v. Gray, 6 East, 564; Howell v. Richards, 11 East, 633; Hotham v.
E. Ind. Co. 1 T. R. 638; Browne v. Knill, 2 B. & B. 395; Tampany ».
Burnard, 4 Campb. 20; 6 Vin. Ab. 450, pl. 40; Anon. Th. Jones, 125;
Butterworth v. Lord Despencer, 3 M. & S. 150. And, see contra, 8 Conn.
459.

1 Austin v. Drew, 4 Campb. 360; 6 Taunt. 436; Hillier v. The Alle-
ghany Ins. Co. 3 Barr,470. And see Babcock v. The Montgomery Ins. Co.
6 Barb, S. C. R. 637, where the position in the text is fully sustained. And
see, accordingly, Angell on Fire Ins. § 111-129, where the authorities on

37*

 

 

 

 
438 LAW OF EVIDENCE. [PART IV.

est, it is not necessary that it be absolute, unqualified, or
immediate; a trustee, mortgagee, reversioner, factor, or other
bailee, being at liberty to insure their respective interests,
subject only to the rules adopted by the underwriters, which

 

this point are collected. In Jdlinois, however, where the plaintiff’s goods,
which were insured “against loss or damage by fire,” were damaged by
the smoke from an adjoining building which was on fire, and by the water
thrown in extinguishing it, the goods having been removed from the store in
consequence of the imminent danger ; but no part of the plaintiff’s store was
burnt, though the heat was so great as to crack the window-glass and scorch
the window-frames, through the iron shutters, and to destroy the paint on
the roof; a majority of the Court held, that the loss was within the terms of
the policy; the Chief Justice dissenting. Case v. The Hartford Fire Ins.
Co. 13 Ill. Rep. 676. The Court, in this case, denied the soundness of the
position in the text. Jdeo quere. If the loss is occasioned by the mere force
of lightning, without actual combustion, it is not. covered by a: policy against
losses “ by fire,” or “ by reason or by means of fire.” Kennison v. Merri-
mack Co. Ins. Co. 14 N. Hamp. 341; Babcock v. Montgomery Co. Ins. Co.
6 Barb. 8. C. R. 6387. If the fire was caused by mere negligence of the
assured, it is still covered by the policy. Shaw v. Robberds, 6 Ad. & El. 75;
Waters v. Merchants’ Ins. Co. 11 Peters, 213; 3 Kent, Comm. 374.. But
the assured may be guilty of such misconduct, not amounting to a fraudu-
lent intent to burn the building, as to preclude him from recovering for its
loss by fire. In Chandler v. Worcester Ins. Co. 3 Cush. 828, where evidence
of such misconduct was offered in the Court below and rejected, a new trial
was ordered for that cause; but the facts proposed to be proved are not
stated in the report. The general doctrirte on this subject was stated by
Shaw, C. J., as follows: “The general rule unquestionably is, in case of
insurance against fire, that the carelessness and negligence of the agents
and servants of the assured constitute no defence. Whether the same rule
will apply equally to a case where a loss has occurred by means which the
assured by ordinary care could have prevented, is a different question.
Some of the cases countenance this distinction. Lyon v. Mells, 5 East, 428;
Pipon v. Cope, 1 Campb. 434.

“But it is not necessary to decide this question. The defendants offered
to prove gross misconduct on the part of the assured. How this misconduct
was to be shown, and in what acts it consisted, is not stated. The question
then is, whether there can be any misconduct, however gross, not amount-
ing to a fraudulent intent to burn the building, which will deprive the
assured of his right to recover. We think there may be. By an intent to
burn the building, we understand a purpose manifested and followed by
some act done tending to carry that purpose into effect, but not including a
mere nonfeasance. Suppose the assured, in his own house, sees the burn-
ing coals in the fireplace roll down on to the wooden floor, and does not brush
PART IV.] INSURANCE. 439

generally require that such interests be distinctly specified.
But a policy against fire is a personal contract only; and
therefore if the assured parts with all his interest in the
property, before a loss happens, the policy is at an end;

 

them up; this would be mere nonfeasance. It would not prove an intent to
burn the building; but it would show a culpable recklessness and indif-
ference to the rights of others. Suppose the premises insured should take
fire, and the flame begin to kindle in a small spot, which a cup of water
would put out ; and the assured has the water at hand, but neglects to put
iton. This ismere nonfeasance ; yet no one would doubt that it is cul-
pable negligence, in violation of the maxim, Sic utere tuo ut alienum non
ledas. To what extent such negligence must go, in order to amount to
gross misconduct, it is difficult, by any definative or abstract. rule of law,
independently of circumstances, to designate. The doctrine of the civil
law, that crassa negligentia was of itself proof of fraud, or equivalent to.
fraudulent purpose or design, was no doubt founded in the consideration, |
that, although such negligence consists in doing nothing, and is thereforea '
nonfeasance, yet the doing of nothing, when the slightest care or attention —
would prevent «a great injury, manifests a willingness, differing little in
character from a fraudulent and criminal purpose, to commit such injury.

“Whether the facts relied on to show gross negligence and gross miscon-
duct, of which evidence was offered, would have proved any one of these
supposed cases, or any like case, we have no means of knowing; but as they
might have done so, the Court are of opinion, that the proof should have
been admitted, and proper instructions given in reference to it.”

1 Ellis on Insurance, p. 22; Marshall on Ins. 789, (8d ed.) ; Lawrence v.
Columbian Ins. Co. 2 Peters, R. 25, 49; 10 Peters, R. 507. [A mortgagee,
who, at his own expense, insures his interest in the property mortgaged
against loss by fire, without particularly describing the nature of his interest,
is entitled in case of a loss by fire, before payment of the mortgage debt, to
recover to his own use the amount of the loss of the insurers, without first
assigning his mortgage, or any part of it, to them. King v. State Mut. &e.
Ins. Co. 7 Cush. 4. Nor is the mortgagee’s right to recover insurance on
his interest in the property insured, affected by the repair of the loss by the
owner of the equity of redemption. Foster v. Equitable Ins. Co. 2 Gray,
216. See Dobson v. Land, 8 Hare, 216; 13 Law Reporter, 247. Ware-
house-men and wharfingers, with whom goods are deposited, have an insur-
able interest in such goods, without the previous authority of the real owners,
or notice to them of such insurance, and such goods are properly described
in the policy as “ goods in trust.” Waters v. Monarch, &c. Ins. Co. 34 Eng.
Law & Eq. 116. One partner has an insurable interest in a building pur-
chased with partnership funds, although it stands upon land owned by the
other partner. Converse v. Citizens’, &c. Ins. Co. 10 Cush. 37.]
440 " LAW OF EVIDENCE. [PART Iv.

though, if he retains a partial or qualified interest, it will still
be protected.

§ 406. Though the plaintiff must here also, as in other
cases, show a compliance with all precedent. conditions and

 

1 Aitna Fire Ins. Co. v. Taylor, 16 Wend. 885; 2 Peters, R. 25; 10 Peters,
R. 507. Where the policy prohibited any assignment of the interest of the
assured, “unless by the consent of the company, manifested in writing,” and
the secretary, on application to him at the office of the company, indorsed
and subscriBed such consent on the policy; it was held, that his authority to
do so, in the absence of evidence to the contrary, should be presumed ; and
that if proof were necessary, evidence that he had often indorsed such con-
sent on other policies, would be prima facie sufficient. Conover v. Mutual
Ins. Co. of Albany, 3 Denio, 254. [A policy made by a mutual fire insur-
ance company was assigned by the insured, with the consent of the company,
toa mortgagee of the property insured, on his giving a written promise to
pay future assessments, and that the property should be subject to the same
lien as before for the payment of assessments. This assignment was held to
constitute a new contract of insurance between the mortgagee and the in-

urers, and not to be affected by the subsequent alienation by the mortgagor
‘of his equity of redemption, nor by his grantees obtaining subsequent in-
isurance thereon. Foster v. Equitable, &c. Ins. Co. 2 Gray, 216. The
giving a mortgage of real estate; made after insurance has been effected,
where the mortgagee does not take possession, is not such an alienation as
will avoid a policy, which is on the condition that it shall become void in case
the property insured is alienated. Jackson v. Mass. Mut. &c. Ins. Co. 23
Pick. 418 ; and there is no distinction on this point between real and per-
sonal property. Rice v. Tower, 1 Gray, 426; Folsom v. Belknap, &c. Ins.
Co. 10 Foster, 231; Howard Ins. Co. v. Bramer, 23 Penn. State R. 50; nor
is the seizure of the insured goods on execution without removing them,
such an alienation as will avoid such a policy. Ibid. Franklin Fire Ins.
Co. v. Findlay, 6 Whart. 483; nor is the levy of an execution on real es-
tate, so long as the right of redemption remains in the debtor, such an alien-
ation as will avoid such a policy. Clark v. New England, &c. Ins. Co. 6
Cush. 342. The alienation of one of several estates, separately insured by
the same policy, only avoids such a policy as to the estate so alienated. Ibid.
It seems that this indorsement on a policy of insurance, “ for value received,
pay the within, in case of loss, to F. & H.,” made to the purchaser of the
property insured, is rather an order, or assignment of a right to the money
in case of loss, than a regular transfer of the contract of insurance. Fogg
v. Middlesex, &c. Ins. Co. 10 Cush. 337. As to what the assignees must
show in order to render such an assignment operative, see the same case.
See also Phillips v. Merrimack, &c. Ins. Co. Ib. 350.]
PART IV.| INSURANCE. 441

warranties, yet if any mistake or misrepresentation, in this
or any other case, has been occasioned by the insurers them-

 

1 [Anie, §§ 383, 384. “ A warranty in a policy of insurance is an express
stipulation, that something then exists, or has happened, or been done, or
shall happen or be done; and this must be literally and strictly complied
with by the assured, whether the truth of the fact, or the happening of the
event, be, or be not, material to the risk, or be or not connected with the
cause of the loss. It is a strict condition. Its effect is that the assured
takes on himself the responsibility of the truth of the fact, or of the hap-
pening or not of such contingency; and unless the warranty be strictly com-
plied with, the policy does not take effect. It is a condition precedent, and
the assured is estopped from denying, or asserting anything contrary. to
his express warranty. Blackhurst v. Cockell, 3 T. R. 360; De Hahn ».
Hartley, 1 T. R. 343; Newcastle Fire Ins. Co. v. MacMorran, 3 Dow, 255 ;
Miles v. Connecticut Mutual Life Ins. Co. 3 Gray, 580. But whilst the law
requires of the assured a strict and literal compliance with the warranty,
whatever may be the motive for itiserting it, so the same rule of strict and
literal performance, shall be applied when it operates in favor of the as-
sured. Kemble v. Rhinelander, 3 Johns. Cas. 134. Nothing is to be added
by way of intendment or construction, when the words are clear and intelli-
gible, although it may reasonably be inferred that some object was intended
to be accomplished by the warranty, which a mere literal compliance does
not fully reach. Hyde v. Bruce, reported in 1 Marsh. Ins. (8d ed.) 354.”
By Shaw, C. J., in Forbush v. Western Mass. Ins. Co. 4 Gray, 337. This
case decides that a statement in a policy of insurance that a certain sum is
insured on the same property by another company named, even if a war-
ranty, is satisfied by the existence of such insurance by that company at the
time of issuing ¢his policy ; although one of the conditions of that insurance
be that it shall be annulled by any subsequent insurance obtained without
the consent of that company, and such consent be not obtained to this in-
surance. And if such consent be not obtained, these insurers are liable for
the whole amount of any loss, notwithstanding a provision in their policy,
that in case of any other insurance, whether prior or subsequent, they will
not be liable beyond the proportion which the amount insured by them
bears to the whole amount insured.

The by-laws of a mutual insurance company provided that the policy,
which was made subject to the conditions and provisions of the by-laws,
should be void unless the true title of the insured should be expressed in
the application. A failure to disclose a mortgage of $800 in the application
was held to avoid the policy. Bowditch, &c. Ins. Co. v. Winslow, 3 Gray,
415; Packard v. Agawam, &c. Ins. Co. 2 Gray, 334. So where the appli-
cation in answer to a question, stated that there was an incumbrance on the
property of “ about $3,000,” and it was in fact $4,000, the policy was held
void. Hayward v. New England Mutual Ins. Co. 10 Cush. 444; and where
442 LAW OF EVIDENCE. [PART Iv.

selves or their agents, the assured is excused The usual
stipulation in these policies, that the insured shall, upon any

 

the policy was on real and personal estate, and the application disclosed an
incumbrance of “ about $4,000,” to A. B., and the fact was that there was a
mortgage to C. D. of $3,600 on the real and personal estate, and another
mortgage on the real estate to E. F. of $1,100, the policy was held void.
And it makes no difference that the insurers are an incorporated company in
another State, and so may have no lien on the property insured in this State.
Davenport v. New Eng. Mut. Ins. Co. 6 Cush. 340; nor that the mortgage
was made before the mortgagor acquired his title, and was not recorded
until after the lien of the insurance company would have attached. Pack-
ard v. Agawam Mut. &c. Co. 2 Gray, 334. And where the application,
which the-applicant covenanted, was a just, full, and true exposition of the
condition and value of the property, so far as known, or material to the
risk, stated the value of the goods to be insured, to be from $2,000 to
$3,000, it was held, the policy being an open one, that it was not void,
although the insured knew that he had not goods on hand at the time of in-
surance to the amount of $2,000, if such representation was made in good
faith that’ the stock on hand, together with the goods to be added and kept.
during the continuance of the policy should range in amount from $2,000
to $3,000. Lee v. Howard, &c. Ins. Co. 11 Cush. 324. A representation
in an application for insurance against fire, that a counting-room in the
building which contains the property insured is warmed by a stove, and that
the stove and funnel are well secured, does not bind the insured to keep the
stove and funnel well secured when not in use. Loud v. Citizens’, &c, Ins.
Co. 2 Gray, 221.

Where the applicant stated that the premises were his, without any-
thing more specific in regard to his title, and he had in fact only a bond
for a deed, the policy was held void. Smith v. Bowditch, &c. Co. 6
Cush. 448; Marshall v. Columbian Ins. Co. 7 Foster, 157; Leathers v.
Ins. Co. 4 Ib. 259, So where the application represents that the property
belongs to the insured only, and it is in fact owned by him and another,
and where it is represented as unincumbered, and it has been sold for
taxes, the policy is made void, though the misrepresentations are not made
with a knowledge of their falsity or with an intent to deceive. Wilbur
v. Bowditch, &c. Ins. Co. 10 Cush. 446; Friesmuth v. Agawam, &e. Co. Ib.
587. So where the by-laws in a policy so made, provide that a subsequent
insurance made by the insured without the consent of the insurers, shall
avoid the policy, the procuring a subsequent valid insurance annuls the
policy. Burt v. People’s Mut. Ins. Co. 2 Gray, 398 ; Carpenter v. Prov.
Wash. Ins. Co. 16 Pet. 495, and 4 How. U. S. 224; but if the subsequent

1 Newcastle Fire Ins. Co. v. MacMorran, 8 Dow, 255. See, as to repre-
sentations, 2 Phillips on Ins. 96-100, 136-142; 8 Kent, Comm. 372-375.
PART LV] INSURANCE. 443

loss, forthwith deliver an account of it, and procure a certifi-
cate from the nearest clergyman or magistrate, stating his
belief that the loss actually occurred, and without fraud, &c.,
is a condition precedent, the performance of which must be
particularly alleged and strictly proved! But slight proof
that the certifying magistrate is the nearest one, is suffi-
cient.2 And it is sufficient if the condition be performed in
reasonable time.®

§ 407. In the estimation of damages, the question for the

 

insurance is not valid, it does not avoid the policy. Clark v. New Eng. Mut.
Fire Ins. Co. 6 Cush. 342; and this is so, although the underwriters of the
void policy pay the loss. Philbrook v. New Eng. &c. Ins. Co. 37 Maine, 137.
For cases in which the insured have attempted to avoid the effect of this
stipulation by showing that the insurers or their agents had notice of the
subsequent insurance, see Barrett +. Union Mut. &c. Co. 7 Cush. 175;
Forbes v. Agawam, &ec. Ins. Co. 9 Ib. 470; Worcester Bank v. Hartford,
&c. Ins. Co. 11 Cush. 265; Lowell v. Middlesex, &c. Ins. Co. 8 Ib. 127;
Schenck v. Mercer Co. &c. Ins. Co. 4 Zabr. 447. It seems that where the
subsequent insurance is the renewal of a former policy, or a substitute for it,
that the rule is the same. Burt v. People’s Mut. Ins. Co. 2 Gray, 398.]

1 Worsley v, Wood, 6 T. R. 710; 2 H. Bl. 574; Marshall on Ins. 807-811,
(8d ed.) [A policy, issued by a mutual fire insurance company, was ex-
pressly made subject to the provisions, &c. of the by-laws of the company,
one of which required that the insurance shall not be payable until the in-
sured shall have delivered a particular account in writing under oath to the
company, stating the nature and value of his interest therein. It was held
that such an account was insufficient that did not state the nature and value
of the insured’s interest at the time of the loss, although it stated that the
entire property was destroyed, and although the value of the property was
stated in the application which was expressly “made part of the policy,
reference thereto being had for description ;” because the parties by an ex-
press stipulation, made the rendition of such an account an essential pre-
requisite to the right to recover any part of the insurance. Wellcome v.
People’s, &c. Ins. Co. 2 Gray, 480. See Kingley v. New England, &c. Ins.
Co. 8 Cush. 393. Where notice of a loss is given, but not according to the
by-laws, and the insurers, without objecting to the form of the notice, decline
paying the loss for other reasons, they will be held to have waived the right
to a more particular notice. Clark v. New England, &c. Ins. Co. 6 Cush.
342; Underhill v. Agawam, &c. Ins. Co. Ib. 440.]

2 Cornell v. Le Roy, 9 Wend. 163.

3 Lawrence v. Columbian Ins. Co. 10 Peters, R. 507.
444 LAW OF EVIDENCE. [PART Iv.

Jury is, the actual loss of the plaintiff; which is to be ascer-
tained by the expenses of restoring the property to the condi-
tion in which it was before; the contract being one of mere
indemnity. Therefore, in case of the loss of a building by
fire, the assured cannot recover for the damage occasioned
by the interruption or destruction of his business, carried on
in the building; nor for the gains which were morally cer-
tain to come to him if the building had not been destroyed ;
but only sufficient for the restoration of that which was in-
sured, namely, the building. The law of marine insurance
respecting salvage does not apply to policies of insurance
against fire. They assume the risk of the property to a
fixed and agreed amount. If the loss is partial, the party
is entitled to recover to the amount of that loss, if less than
the sum insured; and if there is a total destruction of the
property, then to the amount of the policy, the value stated
being in that case in the nature of liquidated damages.”

§ 408. Where the defence is that the property was, wilfully
burnt by the plaintiff himself, the crime must be as fully and
satisfactorily proved to the Jury as would warrant them in
finding him guilty on an indictment for the same offence.3 If
the defence is, that the risk has been materially increased,

 

1 Niblo v. N. American Ins. Co. 1 Sandf. 551,

2 Liscom v. Boston Mutual Ins. Co. 9 Met. 205; Harris v. Eagle Fire Co.
5 Johns. 368, 873; 1 Phillips on Ins. 375; Vance v. Foster, 1 Irish Circuit
Cas. 51, cited 3 Steph. N. P. 2084. By a misapprehension of the remarks of
Pennefather, B., in this last case, it was erroneously stated, in the first edition
of this volume, that no deduction was to be made for the difference of value
between new and old materials, or any regard had to the cost of the property.
See contra, Brinley v. The National Ins. Co. 11 Met. 195. [An insurance
against “loss or damage by fire,” covers a loss arising in part from explosion,
and in part from combustion, of gunpowder on the premises. Scripture v.
Lowell, &c. Ins. Co. 10 Cush. 356.]

3 Thurtell v. Beaumont, 1 Bing. 339. But see contra, Hoffman v. Western
Ins, Co. 1 La. Ann. R. 216. [The insured in a policy against fire may be
guilty of such gross misconduct not amounting to a fraudulent intent to burn
the building, as to preclude him from recovering for a loss of the same by
fire. Chandler v. Worcester, &c. Ins. Co. 8 Cush. 828; Hynds v. Schenectady
Ins. Co. 16 Barb. 119.]
PART IV.] INSURANCE. 445

contrary to a condition in the policy, so as to render the policy
void, the questién, whether, upon the facts proved, the risk has
been so increased, is for the Jury to determine.’ But it is not
necessary in such case for the defendant to show that any
loss has resulted therefrom ; for it is the change of circum-
stances and consequent increase of peril, that absolves the
underwriter; and not the actual loss.2 Such change of cir-

 

1 Curry v. Commonwealth Ins. Co. 10 Pick. 585; [Rice v. Tower, 1 Gray,
426. The permitting an officer who has seized the goods insured on ex-
ecution to sell the same in the insured’s building, if the risk is enhanced
thereby, would be an increase of the risk which the insured had the means
to control. Ibid.]

2 Merriam v. Middlesex Ins. Co. 21 Pick. 162. In this case it was pro-
vided, in the act incorporating the company, that if any alteration should
be made in any house or building, by the proprietor thereof, after insurance
has been made thereon with said company, whereby it may be exposed to
greater risk or hazard from fire, the insurance shall be void, unless an addi-
tional premium should be settled with and paid to the directors, &. And
the Court held, that as this constituted part of the contract between the par-
ties, an alteration, such as there described, was fatal to the policy. So, where
a similar provision was contained in the policy itself, the like judgment was
given. Houghton v. Manufacturers’ Mutual Fire Ins. Co. 8 Met. 114, 121.
The language of the Court on this point was as follows: “There is another
clause in the policy to which the attention of the Court was drawn at the
argument, which is this: ‘If the situation or circumstances, affecting the
risk upon the property insured, shall be altered or changed, by or with
the advice, agency, or consent of the assured or their agent, so as to in-
crease the risk thereupon, without the consent of the company, the policy
shall be void.” The Court are of opinion that this was a stipulation and
condition, without a substantive compliance with which, the company from
the time of its happening, would cease to be bound by the contract. This
provision binds the assured, not only not to make any alteration or change
in the structure or use of the property, which will increase the risk, but
prohibits them from introducing any practice, custom or mode of conducting
their business, which would materially increase the risk, and also from
the discontinuance of any precaution, represented in the application to be
adopted and practised with a view to diminish the risk. The clause in ques-
tion, as well as the preceding clause, refers to the application and the repre-
sentations contained in it. Taking this clause with the representations, we
think the legal effect is, that so “far as these representations set forth cer-
tain usages and practices observed at the factory, as to the mode of con-
ducting their business, and as to precautions taken to guard against fire, it
is not only an affirmation that the facts are true at the time, but in effect a

VOL. II. 38
446 LAW OF EVIDENCE. [PART Iv.

cumstances alone, without consequent increase of risk, is not
sufficient to avoid the policy ; and therefore the erection of a
wooden building, in actual contact with the building insured,

 

stipulation, that as far as the assured, and all those intrusted by them
with the care and management of the property are concerned, such modes
of conducting the business shall be substantially observed, and such pre-
cautions substantially continue to be taken, during the continuance of the
policy.

“By a substantial compliance, we mean the adoption of precautions, if
not exactly those stated in the application, precautions intended to accom-
plish the same purpose, and which may be reasonably considered equally or
more efficacious. For instance: when it is stated that ashes are taken up
in iron hods, it would be a substantial compliance, if brass or copper were
substituted. So, when it is represented that casks of water, with buckets,
are kept in each story, if a reservoir were placed above, with pipes to con-
vey water to each story, and found by skilful and experienced persons to be
equally efficacious, it would be a substantial compliance.” If there be no
such stipulation in the contract, but the risk is materially increased by the
fraud or misconduct of the assured, whereby the loss happens, it is con-
ceived that he cannot recover. Stebbins v. The Globe Ins. Co. 2 Hall, N.
Y. Rep. 632. And see Loundsbury v. The Protection Ins. Co. 8 Conn.
459; 5 Western Law Journ. 303. [A fire policy, issued by a stock com-
pany, stipulated that the use of the buildings insured, during the continu-
ance of the policy, for any trade or business denominated hazardous or
extra hazardous, or specified on a memorandum of special rates, in the terms
‘and conditions annexed to this policy, should avoid the policy and that the
conditions annexed should be resorted to in order to explain the rights and
obligations of the parties. One condition was that if the risk should be in-
creased, or the premises be so occupied by the assured as to render the risk
more hazardous, the policy should be void. During the continuance of the
policy, a part of the premises was used for a trade or a business specified in
the memorandum of special rates, and not mentioned in the policy, and it
was held that this avoided the policy, although the risks of the policy
were special hazards; and that parol evidence was not admissible to show
that such use did not increase the risk and that such use was in fact
known to the agent of the company, who examined the premises, and
agreed with the assured upon what facts were material to be stated, and
filled up the application, received the premium, and issued the policy.
Lee v. Howard Fire Ins. Co. 3 Gray, 583; Westfall v. Hudson River, &c.
Ins. Co. 2 Kernan, 89; and such policy cannot be held valid for a portion
of the risk and invalid forthe residue. Ibid. See also Brown v. People’s
Mut. Ins. Co. 11 Cush. 280; Friesmuth v. Agawam, &c. Ins. Co. 10 Cush.
587.]
PART IV.] INSURANCE. 447

will not have this effect, unless the risk is thereby increased.)
The change of use, too, must be habitual, or of a permanent
character. Thus, where the policy was on premises, “ where
no fire is kept, and where no hazardous goods are deposited,”
a loss occasioned by making a fire once on the premises, and
heating tar, for the purpose of making repairs, was held
eovered by the policy.2, And where a kiln used for drying
corn, was upon one occasion used for the more dangerous
process of drying bark, whereby the building took fire and
was consumed, the underwriters, on the same principle, were
held liable.

§ 409. In the Tuirp piace, as to INsuRance upon Lives.
The same principles, course of proceeding, defences, and rules
of evidence are applicable here, as in policies on other sub-
jects which have been already considered. But in regard to

 

1 Stetson v. Massachusetts Ins. Co. 4 Mass. 330. [Where in a policy of
insurance on a paper-mill and fixtures the words “on condition that the ap-
plicants take all risk from cotton waste” inserted between the statement of
the sum insured and of the place where the property is situated, constitute a
proviso, the burden of proof is on the insurers to show that the loss was occa-
sioned by cotton waste. Kingsley v. New England, &c. Ins. Co. 8 Cush.
393. See also Jones Manuf. Co. v. Manufacturers’ Mut. Ins. Co. Ib. 82.]

2 Dobson v. Sotheby, 1 M. & Malk. 90. -

3 Shaw v. Robberds, 6 Ad. & El. 75, [s. c.1 Nev. & P. 279; Barrel v.
Jermy, 2 Excheq. Rep. 545. And where the building was represented as
occupied for storing lumber and having a counting-room in it, and the count-
ing-room for a single night was used as a resting-place for strangers, it was
held that it did not avoid the policy. Loud v. Citizens’, &c. Ins. Co. 2 Gray,
221, 224. In this case the counting-room was warmed by a stove, which at
that season (September) was not in a safe condition to use, a portion of the
funnel in the loft being removed. The crew of a vessel that had been filled
with water, were permitted to lodge in the counting-room, but were ex-
pressly forbidden to make any fire in the stove. They did make a fire
therein, the building was burned thereby, and the insurers were held li-
able. The drawing of a lottery (that being an unlawful act) with the con-
sent and participation of the insured, in a building insured against loss
by fire as a shoe manufactory, does not avoid the policy on the building,
nor on the stock therein. Boardman v. Merrimack, &c. Ins. Co. 8 Cush.
583.]

4 See Kent, Comm. 365-370; Ellis on Ins. p. 161-171; 2 Phillips on Ins.
448 LAW OF EVIDENCE. [PART Iv.

the interest of the plaintiff in the life in question, it is not
necessary, that it be such as to constitute the basis of any
direct claim in favor of the plaintiff upon the party whose
life is insured; it is sufficient if an indirect advantage may
result to the plaintiff from his life; and therefore the recip-
rocal interests of husband and wife, parent and child, and
brother and sister, in the lives of each other, are sufficient to
support this contract.

 

pp. 100-103, 143-145, 199; Marshall on Ins. p. 770-784, (8d edit.); 3
Steph. N. P. 2068-2076.

1 Tbid.; Ellis on Ins. p. 122-128; Lord v. Dall, 12 Mass. 115. [The con-
tract of life insurance is a contract to pay a certain sum of money on the
death of a person, in consideration of the due payment of a certain annuity
during his life, and it is not a contract of indemnity. Dalby v. India, &c.
Ins. Co. 28 Eng. Law and Eq. 312; Trenton, &c. Ins. Co. v. Johnson, 4 Zabr.
576. See Bevin v. Connecticut, &c. Ins. Co. 23 Conn. 244. A creditor of
a firm has an insurable interest in the life of one of the partners thereof,
although the other partner may be entirely able to pay the debt and the
estate of the insured is perfectly solvent, and he may recover the whole
amountinsured. Morrell v. Trenton, &c. Ins. Co. 10 Cush. 282. Statements
in an application for life iusurance “upon the faith of which” the policy is
expressed to be made, with a stipulation that if they shall be found in any
respect untrue, the policy shail be void, are warranties, and if untrue, even
in a matter immaterial to the risk, they avoid the policy. Miles v. Conn. Mut.
Life Ins. Co. 3 Gray, 580. If in the representation on which a life insurance
is effected, a material fact is untruly stated or concealed, if a general ques-
tion was put which would elicit that fact, the policy will be void, though
no specific questions are asked respecting such fact, and though such state-
ment or concealment arises from accident or negligence and not from de-
sign. Vose v. Eagle Life, &c. Ins. Co. 6 Cush. 42. And the knowledge
of the condition of the insured, on the part of the agent of the insurers, is
immaterial as to the question of misrepresentation or concealment. Ibid. A
person whose life was insured within the United States, had “ permission to
make one voyage out and home to California, in a first-rate vessel, round
Cape Horn or by Vera Cruz.” He was taken sick in California and returned
home by way of Panama and Chagres. It was held that the policy was
thereby avoided although there was then no‘usually travelled route by Vera
Cruz, and although he returned by the shortest and safest way. Hathaway
v. Trenton, &e. Ins. Co. 11 Cush. 448. In a policy of life insurance it was
provided that the policy should be void, if the insured “should die by his
own hand,” and it was held that the self-destruction of the insured while in-
sane, was not within the proviso, (three judges dissenting.) Breasted v.
Farmers’, &c. Ins. Co. 4 Selden, 299. The proviso, ‘shall die by his own

,
PART Iv.| INSURANCE. 449

hand,” includes suicide by swallowing arsenic. Hartman v. Keystone Ins.
Co. 21 Pemn. State R. 466. See also Moore v. Woolsey, 28 Eng. Law and
Eq. 248. The right to the prompt payment of the premiums on a policy for
life insurance on the day they are due, may be waived by the conduct and
course of dealing of the insurers with the insured, so that the policy may
not become void if the premium is not paid the day it is due. Buckbee v.
United States, &c. Co. 18 Barb. 541; Wing v. Harvey, 27 Eng. Law and
Eq. 140.]

38 *
450 LAW OF EVIDENCE. [PART Iv.

LIBEL AND SLANDER.

§ 410. As the general principles and rules of proceeding
are the same, whether the plaintiff has been slandered by
words or libelled by- writings, signs, pictures, or other sym-
bols, both these modes of injury will be treated together

 

1 The general form of a declaration for a libel, where no special induce-
ment is requisite, is as follows : —
— “In a plea of trespass on the case; for that the said (defendant) wickedly
intending to injure the plaintiff, heretofore, to wit, on did maliciously
compose and publish, of and concerning the plaintiff, a certain false, scan-
dalous, and defamatory libel, containing, among other things, the false, scan-
dalous, and defamatory matters following, of and concerning the plaintiff,
that is to say, [here state the libellous matter, in hec verba, with proper innu-
endoes.] By means of the committing of which grievances by the said (de-
fendant,) the plaintiff has been brought into public scandal and disgrace, and
greatly injured in his good name, and otherwise injured.” [If special dam-
age has been sustained, by words not actionable in themselves, it should be
here particularly alleged.]

‘The usual introductory averment of the plaintiff’s good name and reputa-
tion, &c., is altogether superfluous, his good character being presumed. —

For verbal slander, charging an indictable offence, and not requiring a
special inducement, the declaration is as follows :—
—“for that the said (defendant,) wickedly intending to injure the plaintiff,
heretofore, to wit, on —— in a certain discourse which he then had of and
concerning the plaintiff, did, in the presence and hearing of divers persons,
maliciously and falsely speak and publish of and concerning the plaintiff, the
following false, scandalous, and defamatory words, that is to say, [here state
the words, with proper innuendoes.] By means,” &c., as before.

‘The following is an example of a count for words not in themselves ac-
tionable, with a special inducement : —
—“for that heretofore, and before the speaking of the words hereinafter
mentioned, to wit, at the —— Court begun and holden at ,in and for
the county of , on ,a certain action was pending between the plain-
tiff and the said (defendant,) upon the trial whereof in said Court, and in
the due course of legal proceedings therein, the plaintiff, being duly sworn
before the said Court, made affidavit and testified touching the loss of a
certain promissory note in controversy in said action, and material to the

 

 

 

 
PART IV] LIBEL AND SLANDER. 451

In either case, the plea of the general issue will require the
plaintiff to prove, (1.) the special character and extrinsic
facts, when they are essential to the action; (2.) the speak-
ing of the words, or publication of the libel; (3.) the truth
of the colloquium; (4.) the defendants malicious intention,
where malice in fact is material; (5.) the damage, where
special damages are alleged, or more than nominal damages
are expected.

§ 411. It was formerly held, that the question, whether the
publication proved was or was not a libel, or slanderous, was
a question of law; and the general dislike of this doctrine
has occasioned the enactment of statutes! for the purpose of
referring this question, at least in criminal cases, to the Jury.
But such statutes are now understood to be merely declara-
tory of the true doctrine of the Common Law; and, accord-
ingly, it is now held, that the Judge is not bound to state to
the Jury, as a matter of law, whether the publication is a libel
or not; but that the proper course is for him to define what
is a libel, in point of law, and to leave it to the Jury to say,
whether the publication falls within that definition, and, as
incidental to that, whether it is calculated to injure the repu-
tation of the plaintiff?

 

issue joined therein ; and the said (defendant,) wickedly intending to injure
the plaintiff, did afterwards, on —— in a certain discourse which he then
had of and concerning the plaintiff, in the presence and hearing of divers
persons, maliciously and falsely speak and publish of and concerning the
plaintiff, and of and concerning his affidavit aforesaid, the following false,
scandalous, and defamatory words, that is to say, ‘He’ (meaning the plain-
tiff) ‘ has forsworn himself, thereby meaning that the plaintiff (in his affi-
davit) had committed the crime of perjury. By means,” &c., as before.

1 32 Geo. 3, vc. 60; Constitution of Maine, Art.1,§4; Const. of New York,
Art. 7,§93; Rev. Stat. New York, Part 1, ch. 4, § 21.

2 Parmiter v. Coupland, 6 M. & W. 105,108; Baylis v. Lawrence, 11
Ad. & El. 920. And see Tuson v. Evans, 12 Ad. & El. 733, where the same
doctrine is substantially confirmed. See acc. Dalloway v. Turrill, 26 Wend.
883; 2 Stark. on Slander, p. 806, n. (1,) by Wendell. [‘ Yet it is clear,
that upon a demurrer, or an answer in the nature of a demurrer, the Court
must determine whether a cause of action is set out in the declaration to
be sent to the Jury. And if the Judge presiding at the trial and the Jury
452 LAW OF EVIDENCE. [PART Iv.

§ 412, (1.) Where the plaintiff’s office or special character
is alleged in general terms, it is sufficient to prove, by gen-
eral evidence, that he was in the actual possession and enjoy-
ment of the office, or in the actual exercise of the calling,
profession, or employment in question, without strict proof of
any legal inception, investment, or appointment.! ‘Thus, the
general allegation that the plaintiff was a magistrate, or peace-
officer, or an attorney of a particular Court, may be proved
by general evidence, that he acted in such character? So,
it seems, if he alleges himself a physician ;? though formerly
some doubts have been entertained on this point; principally
on the ground that the statute prohibited the practice of
that profession, without certain previous qualifications. But

 

should think the publication libellous, still, if on the record it appear to
be not so, judgment must be arrested. The true distinction probably is,
that though the Court will, upon proper motion or plea of the defendant,
judge whether the publication, as set out, constitutes a ground of action or
not ; yet, if such demurrer or motion is overruled, and the cause goes to the
Jury, the Judge is to define what is a libel, and leave to the Jury to deter-
mine whether the publication falls within the definition of the offence.”
By Thomas, J. Shattuck v. Allen, 4 Gray, 546; Goodrich v. Davis, 11
Met. 473.

‘¢ When words are spoken of two or more persons, they cannot join in an
action for the words, because the wrong done to one is no wrong to the
other. The case of husband and wife is not an exception to this rule. If
there is a slander upon both, the husband should sue alone for the injury to
him, and they should join for the injury to her. The exceptions to the rule
are words spoken of partners in the way of their trade, and the case of slan-
der of the title of joint owners of land, Dyer, 19 a; Burges v. Ashton,
Yely. 128; Sheppard’s Action on the Case for Slander, 52; 1 Walford on
Parties, 514-516; Ebersoll v. King, 8 Binn. 555; Hart v. Crow, 7 Blackf.
351.” By Metcalf, J., in Gazynski v. Colburn, 1 Gray, 10.]

12 Stark. on Slander, p. 5, by Wendell. And see Picton v. Jackson, 4
C. & P. 257.

2 Berryman v. Wise, 4 T. R. 366; Ante, Vol. 1, §§ 83, 92; Jones v. Ste-
vens, 11 Price, 235; Pearce v. Whale, 5 B. & C. 38. Where the words
were charged as spoken of the plaintiff in his office of treasurer and collec-
tor, evidence that he was treasurer only was held insufficient. Sellers v.
Till, 4 B. & C. 655.

3 McPherson v. Chedeall, 24 Wend. 24; Finch v. Gridley, 25 Wend.
469; 1 Stark. on Slander, p. 361, [405]; Brown v. Minns, 2 Rep. Const.
Ct. 235.
PART IV.] LIBEL AND SLANDER. 453

this objection proceeds on the presumption, that the law has
not been complied with; which is contrary to the rule of
presumption as now well settled! If, however, the plaintiff
specially alleges the mode of his appointment, or otherwise
qualifies the allegation of his special character, as, by stating
that he is “a physician, and has regularly taken his degree
of doctor of physic,” the special matter must be strictly
proved by the best evidence of the fact. But if the special
matter does not amount to a qualification of that which
might have been more generally alleged, but is merely cumu-
lative and independent, it is conceived that general evidence
would still be sufficient.2 And where the slander or libel
assumes, that the plaintiff possesses the character alleged,
as, if he was slanderonsly spoken of in that character, by his
title of attorney,‘ clergyman,® or other functionary,® proof of
the words is sufficient evidence that he held the office.

§ 413. In regard to the prefatory allegations of other ex-
trinsic facts, these, where they are material, must be strictly
proved as alleged; but if they are in their nature divisible
and independent, this part of the declaration will be main-
tained by evidence of so much as, if alleged alone, would
have been sufficient.”

 

1 Smith v. Taylor,1 New Rep. 196, [4 B.& P. 196]; 2 Stark. on Slander,
_ p- 9, [6].

2 Moises v. Thornton, 8 T. R. 303; Ante, Vol. 1, §§ 58, 195, note.

3 2 Stark. on Slander, p. 11, note (p), [8].

4 Berryman v. Wise, 4 T. R. 366.

5 Cummen v. Smith, 28. & R. 440.

6 Yrisarri v. Clement, 3 Bing. 432. See also Rex v. Sutton, 4 M.&S.
548, 549, per Bayley, J.; Bagnall v. Underwood, 11 Price, 621; Gould v.
Hulme, 3 C. & P. 625.

7 See ante, Vol. 1, § 58-63, 67; 2 Stark. on Slander, p. 14, [12]. In
libel, as in other cases, there is an important difference between matters of
mere allegation, and matters of description. In respect to the former, a vari-
ance in proof as to number, quantity, or time, does not affect the plaintiff’s
right of recovery ; but in respect to the latter, the variance is fatal. Hence
the day on which a libel is alleged to have been published is not material.
Cates v. Bowker, 18 Verm. R. 23.
454 LAW OF EVIDENCE. [PART Iv.

§ 414. (2.) The plaintiff must also prove the fact of the
publication of the words by the defendant. Words spoken
may be proved by any person who heard them, though they
are alleged to have been spoken in the hearing of A. B. and
others.! And here also, if the words are in themselves action-
able, and the slanders are several and independent, it is sufh-
cient to prove as many of them as constitute any one of the
slanderous accusations;? but if they constitute one general
charge, they must all be proved.? And in all cases, the words
must be proved strictly as they are alleged.* But though it
is not competent for the witness to state the impression pro-
duced on his mind by the whole of the conversation ;° yet it
has been held sufficient to prove the substance of the words,
and the sense and manner of speaking them.’ If they are
alleged as spoken affirmatively, proof that they were spoken
interrogatively will not support the count.’ So, an allega-
tion of words in the second person, is not proved by evidence
of words in the third person ;* nor is an allegation of slan-
derous words, as founded on an asserted fact, supported by
proof of the words as founded on the speaker’s belief of such

 

1 Bull. N. P. 5.

2 2 East, 484, per Lawrence, J.; Flower v. Pedley, 2 Esp. 491; Orpwood
v. Barkes, 4 Bing. 461; Compagnon v. Martin, 2 W. Bl. 790; Easley v.
Moss, 9 Ala. R. 266; Iseley v. Lovejoy, 8 Blackf. 462.

3 Flower v. Pedley, 2 Esp. 491.

4 [The action cannot be sustained by proof of different words than those
alleged, although they are of the same import. Norton v. Gordon, 16 Ill. 38;
Sanford v. Gaddis, 15 Ib. 228; Smith v. Hollister, 32 Vt. 695.]

5 Harrison v. Beyington, S. C. & P. 708. A witness cannot be asked, in
the first instance, on his examination in chief, what he understood by the
words; but after a foundation has been laid, by evidence showing something
to prevent their being taken in their plain and obvious sense, the witness
may then be asked, with reference to that evidence, in which sense he under-
stood them. Daines v. Hartley, 12 Jur. 1093; 3 Exch. R. 200.

6 Miller v. Miller, 8 Johns. 74; Whiting v. Smith, 13 Pick. 364.

7 Barnes v. Holloway, 8 T. R. 150. Proof of special damage must be con-
fined to the evidence of persons who received the slanderous statements from
the defendant himself. Rutherford v. Evans, 4 C. & P. 74; 6 Bing. 451, 8.
C.; Ward v. Weeks, 7 Bing. 211.

8 Avarillo v. Rogers, Bull. N. P. 5; Whiting v. Smith, 13 Pick. 364; Mil-
ler v. Miller, 8 Johns. 74.
PART IV.] LIBEL AND SLANDER. 455

fact. Nor will evidence of words spoken as the words of
another, support an allegation in the common form as of
words spoken by the defendant.2, Words in a foreign lan-
guage, whether spoken or written, must be proved to have
been understood by those who heard or read them; and a
libel by pictures or signs must also be shown to have been
understood by the spectators.? If the libel is contained in a
letter, addressed to the plaintiff, this is no evidence of a pub-
lication in a civil action, though it would be sufficient to
support an indictment on the ground of its tendency to
provoke a breach of the peace.t But if the letter, though
addressed to the plaintiff, was forwarded during his known
absence, and with intent that it should be opened and read
by his family, clerks, or confidential agents, and it is so, it is
a sufficient publication.® If it was not opened by others,
even though it were not sealed, it is no publication.®

§ 415. The publication of a libel by the defendant may be
proved by evidence that he distributed it with his own hand,
or maliciously exposed its contents, or read or sang it in the
presence of others; or, if it were a picture, or a sign, that
he painted it, or if it were done by any other symbol or pa-
rade, that he took part in it, for the purpose of exposing the

 

1 Cook v. Stokes, 1 M. & Rob. 237. And see Brooks v. Blanshard, 1 Cr.
& M. 779; Hancock v. Winter, 7 Taunt. 205; 2 Marsh. 502, S. C.

2 McPherson v. Daniels, 10 B.'& C. 274; Bell v. Byrne, 13 Hast, 554.
And see Walters v. Mace, 2 B. & Ald. 756; Zenobio v. Axtell, 6 T. R. 162.

32 Stark. on Slander, p. 14, [13]; Du Bost v. Beresford, 2 Campb. 512.
[If the words charged were spoken in a foreign language, they should be set
forth in the declaration in such language, with an English translation. If
they are set forth in English without a translation, and thé proof is that they
were spoken in a foreign tongue, the action cannot be sustained. If the
words were spoken in a foreign language, the declaration must allege that
the hearers understood them, and so must be the proofs. Zeig v. Ort,
3 Chand. (Wisconsin,) 26.]

42 Stark. on Slander, p. 33, [35]; Hodges v. The State, 5 Humph. 112.

5 Delcroix v. Thevenot, 2 Stark. R. 63; Phillips v. Jansen, 2 Esp. 624 ;
Ahern v. Maguire, 1 Armst. & McCartn. 39.

6 Clutterbuck vo. Chaffers, 2 Stark. R. 471; Lyle v. Clason, 1 Caines, R.
581.
456 LAW OF EVIDENCE. [PART Iv.

plaintiff to contempt and ridicule But to show a copy of
a caricature to an individual privately, and upon request, is
not a publication? Nor is the porter guilty of publishing,
who delivers parcels containing libels, if he is ignorant of
their contents.’ So, if one sells a few copies of a periodical,
in which, among other things, the libel is contained, it is still
a question for the Jury, whether he knew what he was sell-
ing If the libel was published in a newspaper, evidence
that copies of the paper containing it were gratuitously cir-
culated in the plaintiff’s neighborhood, though they be not
shown to have been sent by the defendant who was the pub-
lisher, is admissible to show the extent of the circulation of
the paper, and the consequent injury to the plaintiff’

§ 416. Evidence, that a libel is in the defendant’s hand-
writing, is not, of itself, proof of a publication by him; but
it is admissible evidence, from which if not explained, publi-
cation may be inferred by the Jury; the question of publica-
tion, where the facts are doubtful, being exclusively within
their province.6 The mode of proof of handwriting has been

 

12 Stark. on Slander, pp. 16, 44, [49]; De libellis famosis, 5 Co. 125;
Lambe’s case, 9 Co. 59. And see Johnson v. Hudson, 7 Ad. & El. 233.
Lending a libellous paper, or sending it in manuscript to a printer, is pub-
lication, though it be returned to the party. Rex v. Pearce, Peake’s Cas.
75; 2 Stark. on Slander, p. 44, [49.]

2 Smith v. Wood, 8 Campb. 323.

3 Day v. Bream, 2 M. & Rob. 54.

4 Chubb v. Flannagan, 6 C. & P. 481.

5 Gathercole v. Miall, 15 M. & W. 319; 10 Jur. 337. [A declaration
alleged that the defendant published, or caused to be published, in a certain
pamphlet, a libel concerning the plaintiff. The evidence showed that the
defendant aided to procure a vote of’ a medical society expelling the plaintiff
therefrom for gross immorality. The vote was published among the trans-
actions of, the society by the regular committee of publication, of which the
defendant was not a member, and it was held that the proof’ did not support
the declaration. Barrows v. Carpenter, 11 Cush. 456.]

6 Rex v. Beare, 1 Ld. Raym. 417; Lambe’s case, 9 Co. 59; Baldwin v.
Elphinston, 2 W. Bl. 10388. And see Rex v. Almon, 5 Burr. 2686. The
seven Bishops’ case, 4 St. Tr. 304; Rex v. Johnston, 7 East, 65, 68.
PART Iv.] LIBEL AND SLANDER. 45T

already considered If the manuscript is in the defendant’s
handwriting, and is also proved to have been printed and
published, this is competent evidence of a publication by
him.2 Where the action for a libel is against the printer or
bookseller, the fact of publication may be proved by evi-
dence that it was sold or issued by him, or in his shop,
though it were only in the way of his trade; or by his agent
or servant, in the ordinary course of their employment; and
this, whether the master were in the same town at the time,
or not; ‘for the law presumes him to be privy to what is
done by others in the usual course of his business, and the
burden is on him to rebut this presumption, by evidence to
the contrary; such as, that the libel was sold clandestinely,
or contrary to his orders, or that he was confined in prison,
so that his servants had no access to him, or that some
deceit or fraud was practised upon him or the like If the
defendant procure another to publish a libel, this is evidence
of a publication by the defendant, whenever it takes place.
The sending of a letter by the post, is a publication in the
place to which it is sent;® the date of the letter is primé
facie evidence that the letter was written at the place where
it is dated ;® and the postmark is primd facie evidence that

 

1 See ante, Vol. 1,§ 576-581. °

2 Regina v. Lovett, 9 C. & P. 462; Bond v. Douglas, 7 C. & P. 626.

3 Rex v. Almon, 5 Burr. 2686; Rex v. Walter, 3 Esp. 21; Rex v. Gutch,
1 M. & Malk. 433; 2 Stark. on Slander, p. 28-32, [30-34.] If the act of
the servant was beyond the scope of his employment, it is no evidence of a
publication by the master. Harding v. Greening, 1 Holt’s Cas. 531; 1 J.B.
Moore, 477, 8. C.; Rex v. Woodfall, 1 Hawk. P. C. ch. 73, § 10, note, (by
Leach) ; Ante, Vol. 1, § 234.

4 Rex v. Johnson, 7 East, 65. <

5 Rex v. Watson, 1 Campb. 215. Whether it is also a publication, or
evena misdemeanor in the place from which it is sent, guere ; and see Rex
vy. Bardett, 4 B. & Ald. 95. [And where two persons participated in the
composition of a libellous letter written by one of them, which letter was
afterwards put into the post-office and sent by mail to the person to whom
it was addressed, this was held competent and suflicient to prove a publica-
tion by both. Miller v. Butler, 6 Cush. 71.]

6 Rex v. Burdett, 4 B. & Ald. 95.

VOL, Il. 39
458 LAW OF EVIDENCE. [PART Iv.

the letter was put into the office at the place denoted by the
mark,! and that it was received by the-person to whom it
was addressed.

§ 417. (3.) The plaintiff must prove the truth of the collo-
quium, or the application of the words to himself, and to the
extrinsic matters alleged in the declaration, where these are
material to his right to recover. The meaning of the defend-
ant is a question of fact, to be found by the Jury2 It may
be proved by the testimony of any persons, conversant with
the parties and circumstances; and from the nature of the
case, they must be permitted to some extent to state their
opinion, conclusion, and belief, leaving the grounds of it to
be inquired into on a cross-examination.* If the words are
ambiguous, and the hearers understood them in an actionable
sense, it is sufficient; for it is this which caused the damage ;

 

1 Rex v. Johnson, 7 East, 65; Fletcher v. Braddyll, 3 Stark. R. 64. See
2 Stark. on Slander, p. 36, [38.]

2 Shipley v. Todhunter, 7 C. & P.680; Warren v. Warren, 4 Tyrw. 850;
Callan v. Gaylord, 3 Watts, 321.

3 Oldham v. Peake, 2 W. Bl. 959, 962; Caen. 275, 278,8. C.; Van
Vechten v. Hopkins, 5 Johns. 211; Bobarts v. Camden, 9 Bast, 93, 96. If
the innuendo does not refer to a pregading allegation, but introduces new
matter, not essential to the action, it needs not be proved. Ibid. It is for
the Judge to decide whether the publication is capable of the meaning as-
cribed to it by an innuendo, and for the Jury to decide whether such mean-
ing is truly ascribed to it. Blagg v. Stuart,10 Ad. & El. 899, N.S. [But
the innuendo cannot enlarge the matter set forth in the other parts of the
declaration. It.is only explanatory of the matter already charged and does
not of itself extend the sense of the words beyond their natural import.
Bloss v. Tobey, 2 Pick. 8320; Carter v. Andrews, 16 Ib. 1; Snell v. Snow,
13 Met. 278; Goodrich v. Davis, 11 Met. 478.]

4 2 Stark. on Slander, p. 46, [51]. Evidence that the plaintiff had been
made the subject of laughter at a public meeting, is admissible for this pur-
spose as well as in proof of damages. Cook v. Ward, 6 Bing. 409. [In prov-
ing the application of the language of an alleged libel to the person who is
the subject of it, witnesses may be asked their opinion as to the meaning and
intent, and what is their understanding of particular expressions. Miller v-
Butler, 6 Cush. 71. See, also, Goodrich v. Davis, 11 Met. 478. But see
Snell v. Snow, 13 Met. 278; Wan Vechten v. Hopkins, 5 Johns. 211; Gib-
son v. Williams, 4 Wend. 320; White v. Sayward, 33 Maine, 322.]
PART Iv.] LIBEL AND SLANDER. 459

and if a foreign language is employed, it must appear to have
peen understood by the hearers! The rule is, that words
must be construed in the sense which hearers of common
and reasonable understanding would ascribe to them; even
though particular individuals, better informed on the matter
alluded to, might form a different judgment on the subject?
But where the words are spoken in relation to extrinsic facts,
in respect of which alone they are actionable, as, where they
are spoken of one in his office of attorney, it is not necessary
to prove that the hearers knew the truth of the extrinsic facts
at the time of speaking; for they may afterwards learn the
truth of the facts, or may report them to others, who already
know the truth of them. Where the libellous words do
themselves assume the existence of the extrinsic facts, there,
as we have just seen, they need not be proved+

§ 418. (4.) As to the proof of malice or intention. If the
words are in themselves actionable, malicious intent in pub-
lishing them is an inference of law, and therefore needs no
proof; though evidence of express malice may perhaps be
shown, in proof of damages.> But if the circumstances of

 

12 Stark. on Slander, p. 46, [51]; Fleetwood v. Curley, Hob. 268.

2 Per Pollock, C. B., in Hankinson v. Bilby, 16 M. & W. 445,

3 Fleetwood v. Curley, Hob. 268.

4 Jones v. Stevens, 11 Price, 235; Bagnall v. Underwood, Id. 621; Gould
v. Hulme, 8 C. & P. 625; Yrisarri v. Clement, 3 Bing. 432. [Barnet v.
Allen, 3 H. & N. 876. Where the slander is alleged to have been made
not in direct terms, but by expressions, gestures, and intonations of voice, it
is competent for witnesses who heard the expressions to state what they un-
derstood the defendant to mean by them, and to whom he intended to apply
them. Leonard v. Allen, 11 Cush. 241.]

5 2 Stark. on Slander, p. 47, [58.] And see Bodwell v. Osgood, 3 Pick.
379, 384. Where the truth of the words had been pleaded in justification,
and the plaintiff at the trial offered to accept an apology and nominal dam-
ages, if the defendant would withdraw the justification, which the defendant
refused, but did not attempt to prove it; this conduct was held proper for
the Jury to consider, with reference to the question of malice, as well as to
that of damages. Simpson v. Robinson, 18 Law J. 73, Q.B.; 12 Ad. & El.
511, N.S. [A retraction of the slander, in the presence of the defendant’s ;
family, is not admissible in mitigation of damages. Kent v. Bonney, 38 !
460 LAW OF EVIDENCE. [PaRT Iv.

the speaking and publishing were such as to repel that infer-
ence and exclude any liability of the defendant, unless upon
proof of actual malice, the plaintiff must furnish such proof.
To this end, he may give in evidence any language of the
defendant, whether oral or written, showing ill-will to the
plaintiff, and indicative of the temper and disposition with
which he made the publication ; and this, whether such lan-
guage were used before or after the publication complained
of But if such collateral evidence consists of matter action-
able in itself, the Jury must be cautioned not to increase the
damages on that account.?

 

Maine, 435.] In an action for a libel in charging the plaintiff with murder
in a duel, with circumstances of aggravation, these gircumstances, if Jibellous,
must be justified, as well as the principal charge. The record of the plain-
tiff’s acquittal is admissible in evidence; but it is not alone a sufficient
answer to the defendant’s justification; nor is it conclusive against the de-
fendant, in proof of the plaintiff’s innocence of all the circumstances alleged.
Helsham v. Blackwood, 15 Jur. 861.

1 2 Stark. on Slander, p. 47-58, [53-60.] See supra, § 271; Kean v.
McLaughlin, 2 8. & R. 469; Pearson v. Le Maitre, 7 Jur. 748; Stuart v.
Lovell, 2 Stark. R. 93; Chambers v. Robinson, 1 Str. 691; Wallis v. Mease,
3 Binn. 546; Macleod v. Wakley, 3 C. & P. 311; Plunkett ». Cobbett, 5
Esp. 136; Chubb v. Westley, 6 C. & P. 436. In some cases the admissibility
of other words or writings has been limited to those which were not in them-
selves actionable ; Mead v. Daubigny, Peake’s Cas. 125; Bodwell v. Swan,
8 Pick. 376; Defries v. Davis, 7 C. & P. 112; or for which damages had
already been recovered. Symmons v. Blake, 1 M. & Rob.477. In other
cases, it has been restricted to words or writings relating to those which are
alleged in the declaration. Finnerty v. Tipper, 2 Campb. 72; Delegal cv.
Highley, 8 C. & P. 444; Barwell v. Adkins, 1 M. & G. 807; Ahern v.
Maguire, 1 Armstr. & Macartn. 39; Bodwell v. Swan, 3 Pick. 376. In
others, the admissibility of subsequent words has been limited to cases where
the intention was equivocal, or the words ambiguous. Stuart v. Lovell, 2
Stark. R. 93; Pearce v. Ornsby, 1 M. & Rob. 455; Lanter v. McEwen, 8
Blackf. 495; Kendall v. Stone, 2 Sandf. Scr. 269; Berson v. Edwards, 1
Smith, 7. (fe an action of slander for charging an infant with larceny, evi-
dence of a previous quarrel between the defendant’s father and next friend,
is not admissible to prove malice in the defendant towards the plaintiff.
York v. Peace, 2 Gray, 282.]

2 Russell v. Macquister, 1 Campb. 49, n.; Pearson v. Le Maitre, 7 Jur.
748; 5 Man. & Gran. 700; 6 Scott, N. R. 607. And see Finnerty v. Tip-
per, 2 Campb. 74, 75; Tate v. Humphrey, Id. 73, n. If the plaintiff, collat-
PART Iv. ] LIBEL AND SLANDER. 461

§ 419. In ordinary cases, under the general issue, the plain-
tiff will not be permitted to prove the falsity of the charges
made by the defendant, either to show malice, or to enhance
the damages; for his innocence is, presumed ; unless the de-
fendant seeks to protect himself under color of the circum-
stances and occasion of writing or speaking the words; in
which case, it seems, that evidence that the charge was false,
and that the defendant knew it to be so, is admissible to rebut
the defence. But where the action is for slander in giving
a character to a former servant, or one who has been in the
employment of the defendant, the plaintiff must prove that
the character was given both falsely and maliciously.? Proof
that the defendant was aware of its falsity, is sufficient proof
of malice; and in proof of its falsity, general evidence of his
good character is sufficient to throw the burden of proof
upon the defendant.’

§ 420. (5). As to the damages. Where special damage is
essential to the action, the plaintiff must prove it, according
to the allegation. We have already seen, that damages,
which are the necessary results of the wrongful act complained
of, need not be alleged; and that these are termed general
damages; but that those which, though natural, are not
necessary results, and which are termed special damages,
must be specially alleged and proved; and that no damages
can, in any case, be recovered, except those which are the
natural and proximate consequences of the wrongful act
complained of.4 Even if the words are actionable in them-

 

erally introduces other libels in evidence, the defendant may rebut them by
evidence of their truth. Stuart v. Lovell, 2 Stark. R. 93; Warne v. Chad-
well, Id. 457; [Commonwealth v. Harmon, 2 Gray, 289.]

1 2 Stark. on Slander, p. 53, [59].

2 Brommage v. Prosser, 4 B. & C. 256; Hargrave v. Le Breton, 4 Burr.
2425; Weatherstone v. Hawkins, 1 T. R. 110.

3 Rogers v. Clifton, 3 B. & P. 587, 589; 2 Stark. on Slander, p. 52, [58];
King v. Waring, 5 Esp. 13; Pattison v. Jones, 8 B. & C. 578. [Chubb vu.
Gsell, 34 Penn. 114; Hartranft v. Hesser, Id. 117.]

4 See supra, tit. Damaass, §§ 254, 256, 267, 269, 271, 275. Ina joint
action by partners, for a libel in respect to their trade, damages cannot be

89*
462 LAW OF EVIDENCE. [PART Iv,

selves, and @ fortiori if they are not, no evidence of special
damage is admissible, unless it is specially alleged in the
declaration ; and to such special allegation the evidence must
be strictly confined! Thus, if the loss of marriage is alleged
as special damage, the individual must be named with whom
the marriage might have been had, and no evidence can be
received of a loss of marriage with any other person” But
where the damage is in the prevention of the sale of an estate
by auction, a general allegation is sufficient, and evidence
that any person would have bid upon it, is proof of such pre-
vention2 So, where the damage consists in the desertion of
a chapel,‘ or of a theatre,> by those who used to resort to it,
it seems that a general allegation and proof of the diminu-
tion of receipts ‘is sufficient. If the defendant admits and

 

given for any injury to their private feelings, but only for injury to their
trade. Haythorne v. Lawson, 3 C. & P. 196.
1 Ibid.; Herrick v. Lapham, 10 Johns. 281; Hallock v. Miller, 2 Barb.
8. C. R. 730. Where the action was for alleging that the plaintiff’s ship
was unseaworthy, proof of special damage was held admissible, without any
averment of special damage in the declaration ; because, being a chattel, no
action is maintainable without proof of some damage. Ingram v. Lawson, 9
C. & P. 326. Sed quere. [An author cannot maintain an action for a pub-
lication disparaging his works in which he has a copyright, without an alle-
gation and proof of special damage. Swan v. Tappan, 5 Cush. 104.

If the plaintiff in an action on the case for publishing disparaging state-
ments concerning his goods, whereby he has sustained special damage, proves
that the publication is false in any material respect, and that he has sustained
special damage therefrom, such proof makes a prima facie case, and malice
is to be presumed. If the defendant then proves that the publication was
honestly made by him, believing it to be true; and that there was a reason-
able occasion therefor in the conduct of his own affairs which fairly war-
ranted the publication; such proof renders the publication privileged, and
constitutes a good defence to the action, unless the plaintiff can show malice
in fact, which is a question for the Jury. Ibid.]

21 Saund. 243, n. 5, by Williams; Hunt v. Jones, Cro. Jac. 499; Anon.
2 Ld. Raym. 1007; 2 Stark. on Slander, p. 55, [62, 63]. So the loss of
customers and the like. Ibid.; Tilk v. Parsons, 2 C. & P. 201; Ashley v.
Harrison, 1 Esp. 48, 50.

3 2 Stark. on Slander, p. 56, [63].

4 Hartly v. Herring, 8 T. R. 130.

> Ashley v. Harrison, 1 Esp. 48.
PART IV.] LIBEL AND SLANDER. 463

justifies the fact of publication, without pleading the general
issue, the plaintiff may show the manner of publication, as
affecting the question of damages.

§ 421. In the perence of this action under the general
issue, the defendant may give in evidence any matter, tend-
ing to deny or disprove any material allegation of the plain-
tiff; such as, the speaking and publishing of. the words, the
malicious intention or the injurious consequences resulting
from the act complained of. If the plaintiff, in proof of
malice, relies upon the falsity of the charge, the defendant
may rebut the inference by evidence of the truth of the
charge, even under the general issue. And where the occa-
sion and circumstances of the publication or speaking were
such as to. require from the plaintiff some proof of actual
malice, the defendant may prove these circumstances under
the general issue.?- Such is the case where the alleged libel

 

1 Vines v. Serell, 7 C. & P. 163. But evidence of the defendant’s pro-
curing testimony to prove the truth of his charges, and then declining to
plead in justification, is not admissible to affect the damages, though it might
be properly referred to the Jury, upon the question of malice. Bodwell v.

Osgood, 3 Pick. 379. Nor is evidence of a repetition of the slander admis- |

sible to enhance the plaintiff’s damages. Burson v. Edwards, 1 Smith, 7;
Lanter v. McEwen, 8 Blackf. 495; Shortley v. Miller, 1 Smith, 395. Nor
can the failure to sustain a plea in justification have that effect. Shank v.
Case, 1 Smith, 87. [The plaintiff cannot show, in order to enhance the
damages, that it was currently reported in the neighborhood that the de-
fendant had charged the plaintiff with the crime alleged in the declaration.
Leonard v. Allen, 11 Cush. 241. And where the publication is by a pri-,
vate letter directed and sent by mail, to a particular person, the defendant
is liable for the damages caused by any further publication of the letter by}
the person to whom it is addressed, or by other persons after it comes into!
the hands of the person addressed, if such further publication is a probable
and natural consequence of the first sending the letter. Miller v. Bartlett,
6 Cush. 71.]

2 The class of privileged communications “ comprehends all cases of com-
munications made bond jide in performance of a duty, or with a fair and
reasonable purpose of protecting the interest of the party using the words.”
Somervill v. Hawkins, 15 Jur. 450, per Maule, J., 3 Eng. Law & Kq. R. 503.
A communication being shown to be privileged, the burden of proof is on the
plaintiff, to show actual malice in the defendant. But to enable the plain-
464 LAW OF EVIDENCE. [PART LV.

or slander consisted in communications, made to the appoint-
ing power, in relation to the conduct of the plaintiff, as a
public officer ; or, to the individuals or authorities empowered
by law to redress grievances, or supposed to possess influ-
ence and ability to procure the means of relief; or, where
they were confidential communications, made in the ordinary
course of lawful business, from good motives and for justi-
fiable ends. So, where the circumstances were such as to
exclude the presumption of malice, as, if the words were
spoken by the defendant in his office of Judge, Juror, Attor-
ney, Advocate, Witness, or Party, in the course of a judicial
proceeding, or as a member of a legislative assembly, in his
place, these, also, may be shown under the general issue.}

 

tiff to have the question of malice submitted to the Jury, it is not essential
that the evidence should be such as necessarily leads to the conclusion that
malice existed, or that it should be inconsistent with the non-existence of
malice; but it is necessary that the evidence should raise a probability of
malice, and be more consistent with its existence than with its non-exist-
ence. Ibid. [See also Taylor v. Hawkins, 5 Eng. Law & Eq. 253; Har-
ris v. Thompson, 24 Ib. 370; Cook v. Wildes, 30 Ib. 284; Gilpin v. Fowler,
26 Ib. 386; Harrison v. Bush, 32 Ib. 173. The fact that the defendant
is the conductor of a public press gives him no peculiar rights, or especial
privileges, or claims to indulgence. He has just the same rights that the rest
of the community have and no more. He has the right to publish the truth,
but no right to publish falsehoods to the injury of others with impunity.
Sheckell v. Jackson,.10 Cush. 25. But if he publish an article without
knowing it to be libellous, and so satisfy the Jury, he will not be liable
therefor, although the writer of the article intended it to be libellous. In
such case the writer only is liable to the party injured. Smith v. Ashley, 11
Met. 367.]

11 Stark. on Slander, p. 401-406, by Wendell; Fairman v. Ives, 5 B.
& Ald. 642; Bradley v. Heath, 12 Pick. 163; Hoar v. Wood, 3 Met. 193;
Coffin v. Coffin, 4 Mass. 1; Remington v. Congdon, 2 Pick.310. Confiden-
tial communications, made in the usual course of business, or of domestic or
friendly intercourse, should be viewed liberally by Juries; and unless they
see clearly that there was a malicious intention of defaming the plaintiff,
they ought to find for the defendant. Todd v. Hawkins, 8 C. & P. 88, per
Alderson, B. See to the same effect, Wright v. Woodgate, 2 C. M. & R.
573; 1 Tyrw. & G. 12; Toogood v. Spyring, 1 C. M. & R. 181; 4 Tyrw.
582; Shipley v. Todhunter, 7 C. & P. 680; Story v. Challands, 8 C. & P.
234, 236; Wilson v. Robinson, 9 Jur. 726; Griffith v. Lewis, 7 Ad. & El,
61, N. S.; Warr v. Jolly, 6 C. & P. 497; Padmore v. Lawrence, i1 Ad. &
PART IV.] LIBEL AND SLANDER. 465

So, if a person having information materially affecting the
interests of another, honestly communicates it privately to
such other party, in the full and reasonably-grounded belief
that it is true; he is justified in so publishing it, though he
has no personal interest in the subject-matter, and though no
inquiry has been made of him, and though the danger to the
other party is not imminent.! Under this plea, also, the de-
fendant may prove that the publication was procured by the
fraudulent contrivance of the plaintiff himself, with a view
to an action; or that the cause of action has been discharged
by an accord and satisfaction, or by a release.”

 

EL 380; Needham v. Dowling, 15 Law Journ. 9, N. §.; Gardner v. Slade,
13 Jur. 826; Kershaw v. Bailey, 1 Exch. R. 743; Somervill v. Hawkins,
15 Jur. 450; 3 Eng. Law and Eq. R. 503; Simpson v. Robinson, 12 Ad. &
El. 511, N. 8. Though the expressions were stronger than the circumstances
required, it is still a question for the Jury, whether they were used with
intent to defame, or in good faith to communicate facts, interesting to one of
the parties. Dunman v. Bigg, 1 Campb. 269 n.; Ward v. Smith, 4 C. & P.
302; 6 Bing. 749, 8. C. [A complaint, made to a grand-jury, being a pro-
ceeding in the regular course of justice, cannot be deemed a libel. Kedder
v. Parkhurst, 3 Allen, 393.]

1 Coxhead v. Richards, 10 Jur. 984. But whether such communication is
privileged, guere. Ibid. And see Bennett v. Deacon, 15 Law Journ. 289,
N. S.; Blackham v. Pugh, Id. 290; Wilson v. Robinson, 9 Jur. 726.

2 King v. Waring, 5 Esp.1 3; Smith v. Wood, 3 Campb. 323; Lane »v.
Applegate, 1 Stark. R. 97. [Words spoken in good faith and within the
scope of his defence, by a party on trial before a church meeting, are privi-*
leged and do not render him liable to an action, although such words charge
a person with larceny. York v. Pease, 2 Gray, 282. All persons partici-
pating in the exercise of the authority which congregational churches in
Massachusetts have of dealing with their members on ‘scandalous or immoral
conduct, whether by complaining, giving testimony, acting and voting, or
pronouncing the result orally or in writing, provided they act in good faith,
and within the scope of the authority of the church, are protected by law.
Farnsworth v. Storrs, 5 Cush. 412. And where a vote of excommunication
from the church has been passed, and the offender thereby declared to be
no longer a member of the church, the sentence may nevertheless be pro-
mulgated by being read in the presence of the congregation by the pastor.
Ibid. See also Streety v. Wood, 15 Barb. 105. A report of the condition
of the town schools made and published, as required by law, by the superin-
tending school committee, is not libellous, no corrupt motives being imputed,
by reason of charging the prudential committee of one of the districts with
466 LAW OF EVIDENCE. [PART IV.

§ 422. But in all cases, where the occasion itself affords
primé facie evidence to repel the inference of malice, the
plaintiff may rebut the defence, by showing that the object
of the defendant was malignant, and that the occasion was
laid hold of as a mere color and excuse for gratifying his
private malice with impunity.

§ 423. If, from the plaintiff’s own showing, it appears that
the words were not used in an actionable sense, he will be
nonsuited2 But if the plaintiff once establishes a primd
facie case, by evidence of the publishing of language appar-
ently injurious and actionable, the burden of proof is on the
defendant, to explain it But the defendant is entitled to
have the whole of the alleged libel read, and the whole con-
versation stated in order that its true sense and meaning may
appear. And if the libel is contained in a letter, or a news-
paper, the whole writing or paper is admissible in evidence.
The defendant may also give in evidence a letter written to
him, containing a statement of the facts upon which he
founded his charges, to show the bona fides with which he
acted.?

§ 424. It is perfectly well settled, that, under the general
issue, the defendant cannot be admitted to prove the truth
of the words, either in bar of the action, or in mitigation of

 

employing a teacher and putting her in charge of a public school, in viola-
tion of law, and with taking possession of the school-house and excluding by-
force the general school committee and the teachers employed by them.
Shattuck v. Allen, 4 Gray, 540.]

1 2 Stark. Evid. 464; Somervill v. Hawkins, supra.

2 Thompson v. Bernard, 1 Campb. 48.

3 Penfold v. Westcote, 2 New Rep. 3353; Christie v. Cowell, Peake’s Cas.
4, and note by Hay; Button v. Hayward, 1 Vin. Abr. 507, in marg. ; 8 Mod.
24, 8. C.

4 Weaver v. Lloyd, 1 C. & P. 295; Thornton v. Stephen, 2M. & Rob.
45; Cooke v. Hughes, Ry. & M. 112.

5 Blackburn v. Blackburn, 8 C. & P. 146; 4 Bing. 805, 8. C. See also
Fairman v. Ives, 5 B. & Ald. 642; Blake v. Pilford, 1 M. & Rob. 198; Pat-
tison v. Jones, 8 B. & C. 578.
PART Iv.] LIBEL AND SRANDER. 467

damages.! And whether, for the latter purpose, he may show
that the plaintiff was generally suspected, and commonly re-
ported to be guilty of the particular offence imputed to him,
is, as we have seen,” not universally agreed. But by the
weight of authorities, it seems settled that the defendant may
impeach the plaintiff’s character, by general evidence, in
order to reduce the amount of damages.? And if the plain-

 

1 But matters which fall short of a justification, and do not tend to it,
may be shown in mitigation of damages, under this issue. Snyder v. An-
drews, 6 Barb. 8. C. R. 48; Tollett v. Jewett, 1 Am. Law Reg. p. 600,

2 Supra, § 275; 2 Stark. on Slander, p. 77-95, by Wendell. See also
Waithman v. Weaver, 11 Price, 257, n.; Wolmer v. Latimer, 1 Jur. 119.
Where the defendant, when speaking the words, referred to certain current
reports against the plaintiff, which he said he had reason to believe were
true; it was held, under the general issue, that he might prove, by cross-
examination of the plaintiff’s witnesses, that such reports had in fact pre-
vailed in the plaintiff’s neighborhood, and were the common topic of con-
versation, before the words were uttered by him. Richards v. Richards, 2
M. & Rob. 557. And see Morris v. Barker, 4 Harringt. 520. [Where in
an action for the publication of a libel which charged the plaintiff with dis-
honesty and bad faith, the defendant cannot ask a news-collector who
wrote part of the article complained of, “ what inquiries and examina-
tions he made, and what sources of information he applied to, before mak-
ing the communications.” Nor can he, as a foundation for such a question,
prove that there was a general anxiety in the community in regard to the
facts stated in the publication. Sheckell v. Jackson, 10 Cush. 25. Nor can
he show circumstances which excited suspicion on his part and furnished
reasonable cause for belief, on his part, that the words spoken were true.
Watson v. Moore, 2 Cush. 183; Dame v. Kenney, 5 Foster, 318; Knight
uv. Foster, 3 N. H. 576.]

3 Ante, Vol. 1, § 55; Paddock v. Salisbury, 2 Cowen, 811. It must be
general evidence. Loss v. Lapham, 14 Mass. 275; Stone v. Varney, 7
Met. 86. In this case, the decisions on this much controverted point were
fully reviewed by Mr. Justice Dewey, whose observations cannot but be
acceptable, in this place, to the reader. It will be observed that in Massa-
chusetts, the general issue may always be pleaded, accompanied by a notice
of the special matter of defence intended to be set up. Having stated the
question to be, whether the defendant can, in an action of slander, under
the general issue accompanied by a notice that he will offer evidence to
establish the truth of the charge in justification, give in evidence the
general character of the plaintiff in mitigation of damages; the learned
Judge proceeded as follows: “ This question is not new, but one that has
often arisen, and been the subject of consideration. It was much discussed
468 LAW OF EVIDENCE. [PART IV.

tiff declares that he was never guilty, nor suspected to be
guilty of the crime imputed to him, it has been held, that the

 

in the case of Foot v. Tracy, 1 Johns. 46, where it arose, however, under the
single plea of the general issue, but was not decided; the members of the
Court, who gave opinions, being equally divided. Kent and Thompson, Js.,
were for its admission, and Livingston and Tompkins, contra. In a later
case, reported in Anthon, 185, Springstein v. Field, Spencer, J., took occa-
sion to remark, that he had no doubt about the admissibility of the evidence
offered in the case of Foot v. Tracy, but for particular reasons connected with
that case, he forbore to express any opinion on the hearing of the same. In
Paddock v. Salisbury, 2 Cow. 811, the question came again before the Su-
preme Court of New York, when it was held that‘evidence of general char-
acter was admissible in mitigation of damages, under the general issue, which
was the only plea filed in that case.

“ This subject was much considered in the case of Root v. King, 7 Cow.
613. The Court there held that public reports of the facts stated in the libel
were inadmissible as evidence in mitigation of damages, where a plea in jus-
tification had been filed, alleging the truth of the matter stated in the libel ;
but they also held that the general character of the plaintiff was put in issue
in an action of slander, without regard to the pleading or notice of defence on
the part of the defendant. Chief Justice Savage says, ‘ Under any circum-
stances, the defendant may show that the plaintiff’s reputation has sustained
‘ no injury, because he had no reputation to lose.’ ‘The rule is admitted,
that the general character may be attacked, because this is relied upon as the
ground of damages, and the plaintiff is supposed at all times to be prepared
to sustain his general character.’ See alsoInman v. Foster, 8 Wend. 602,
acc. Mr. Greenleaf, in his Treatise upon Evidence, Vol. 1, § 55, says,
‘ Whether evidence impeaching the plaintiff’s general character is admissible
in an action of slander, as affecting the damages, is a point which bas been
much controverted, but the weight of authority is in favor of admitting such
evidence. In 2 Stark. Ev. 369, it is said, that in actions of slander, where
the defendant has not justified, evidence of the plaintiff’s bad character is
admissible in reduction of damages; and in page 878, the author says, ‘ Gen-
eral evidence of bad character seems to be adinissible, although the defend-
ant has justified that the imputation is true; for if the justification should
fail, the question as to the quantum of damages would still remain.’ And
such evidence has been held admissible in North Carolina, Ohio, and Ken-
tucky, when a justification and the general issue are both pleaded. Vick v.
Whitfield, 2 Hayw. 222; Dewit v. Greenfield, 5 Ham. 275; Eastland’ v.
Caldwell, 2 Bibb, 21; Calloway v. Middleton, 2 A. K. Marsh. 372. See
also Sawyer v. Hopkins, 9 Shepley, 268.

“In New York, as before seen, such evidence has been admitted, where
the general issue has been the only plea. So in Connecticut, Pennsylvania,
South Carolina, and New Humpshire. Brunson v. Lynde, 1 Root, 354;
Austin v. Hanchett, 2 Root, 148; Henry v. Norwood, 4 Watts, 347; Buford
PART IV.] LIBEL AND SLANDER. 469

defendant may disprove the latter allegation, by evidence
showing that he was suspected.! The defendant may also

 

v. M’Luny, 1 Nott & McCord, 268; Sawyer v. Erfert, 2 Nott & McCord,
511; Lamos v. Snell, 6 N. Hamp. 413. See also Waters v. Jones, 3 Porter,
442.

“ In our own case, we shall find that the general principles stated in Lar-
ned v. Buffinton, 3 Mass. 546, bear upon this question. The precise question
of the competency of evidence touching the plaintiff’s moral character was
there waived, as no such evidence was embraced in the proposed proof.
‘But it was ruled, that it was competent to give in evidence the plaintiff's
rank and condition in life, either on the general issue, or a traverse of a jus-.
tification ; and the reasons assigned are, that ‘the degree of injury the
plaintiff may sustain by the slanderer, may very much depend on his rank
and condition in society,’ and also, that ‘it is a fact, in its nature, of general
notoriety.” In Wolcott v. Hall, 6 Mass. 518, in which there was a justifica-
tion pleaded, evidence was offered, in mitigation of damages, of general re-
ports that the plaintiff had been guilty of the crime imputed to him in the
slanderous words. This was rejected; but-it was said by the Court, that
evidence of general bad character may be considered by the Jury; ‘for
the worth of a man’s general reputation among his fellow-citizens may entitle
him to large damages for an attempt to injure it; which he ought not to ob-
tain, if his character is of little or no estimation in society.’ The principle
here settled seems to be that particular reports, injurious to one’s reputation,
are to be rejected, but a bad general character may be shown in mitigation
of damages ; and this, though a justification be pleaded. Alderman v. French,
1 Pick. 1, went no further than to hold that evidence of a general report
that the plaintiff had been guilty of the crime imputed to him, could not be
received in mitigation of damages. In Ross v. Lapham, 14 Mass. 279, which
was an action on the case for slanderous words, charging the plaintiff with
perjury, and in which the Court held it incompetent to offer in evidence, in
mitigation of damages, that the plaintiff was an atheist, yet it was assumed
that, by commencing an actiog of slander, ‘ the plaintiff put his general rep-
utation at issue.” See also Commonwealth v. Snelling, 15 Pick. 344, which
seems to recognize the same principle. In-Bodwell v. Swan, 3 Pick. 378,
while it was held that reports of particular facts were inadmissible, it was
declared, as the rule of law, that ‘ the general bad character of the plaintiff
maybe shown, because he relies upon its goodness, before calumniated, as

1 Earl of Leicester v. Walter, 2 Campb. 251. But in an action for a libel,
which was actionable only in respect of the plaintiff’s office, where his due
discharge of its duties was averred, the defendant was not permitted, under
the general issue, to disprove this averment, by evidence of the plaintiff’s
negligence in discharging his official duties. Dance v. Robson, 1 M. &
Malk. 294.

VOL. IL. 40
470 LAW OF EVIDENCE. [PART Iv.

show, upon the question of damages, under this issue, that
the charge was occasioned by the misconduct of the plaintiff

 

the principal ground of damages. A fair character has been maliciously at-
tacked, and the law will repair the mischief by damages ; but to.a reputation
‘already soiled the injury is small.”

“ The English doctrine, as stated in Earl of Leicester v. Walter, 2 Campb.
251, and —— v. Moor, 1 M. & 8S. 284, seems to go further than these doc-
trines, and to authorize the admission of mere public reports that the plain-
tiff was guilty of the crime imputed to him by the defendant. See also
Richards v. Richards, 2 M. & Rob. 557; 3 Stephens, Nisi Prius, 2578. But
this rule has not prevailed with us, and is supposed by Mr. Justice Jackson,
in his opinion in Alderman v. French, 1 Pick. 18, 19, to have been only
intended as an admission of evidence of the general reputation and standing
of the plaintiff. In this view, they would bear upon the question. As admis-
sions of reports, we should reject them as authority.

“Tt is said, that the more recent English cases seem to consider evidence
of general bad character as irrelevant, and therefore inadmissible. It would
seem, from the report of the case of Cornwall v. Richardson, Ry. & Mood.
305, that evidence of general good character was held not to be admissible,
for the plaintiff, where the defendasft had filed special pleas of justification,
as well as the general issue ; and the presiding Judge seems to have assumed
that such evidence was not competent to either party. See also Stow v.
Converse, 3 Conn. 326; Matthews v. Huntley, 9 N. Hamp. 146. This de-
cision is directly opposed to the case of Harding v. Brooks, 5 Pick. 244. In
Jones v. Stevens, 11 Price, 255, which contains much reasoning against the
competency of such evidence, the question arose upon a plea in justification,
containing general allegations against the plaintiff’s character, and the real
question was, whether it was competent to support the plea, and disprove the
declaration, by producing evidence that the general character of the plain-
tiff, as an attorney, was bad. This is the view taken of that case by Mr.
Greenleaf, in his note to § 55 of the first volume of his Treatise on Evi-
dence.

“This review of the adjudicated cases, and particularly the decisions in

.. this Commonwealth, and in the State of New York, seems necessarily to lead
’ to the conclusion, that evidence of general bad character is admissible in
mitigation of damages. Thatit isso where no justification has been pleaded,
seems to be everywhere sanctioned, unless a contrary opinion is found in
the recent English decisions to which I have alluded. Suggestions have
been made, in some of the cases, that such evidence was not admissible
where the defendant pleaded the truth in justification. But upon principle,
‘this distinction, I apprehend, will be found untenable. There is, doubtless,
a class of cases, where the defendant, by pleading the truth in justification,
may deprive himself of a defence upon which he might have relied, if he
had pleaded the naked general issue; as that the words were spoken in
PART Iv.] LIBEL AND SLANDER. 471

either in attempting to commit the crime, or in leading the
defendant to believe him guilty, or in contemporaneously

 

passion, in giving the character of a servant, &c. In such cases, the very
fact of pleading a justification, and putting upon the record an allegation of
the truth of the words, has been supposed to take away the defence of the
character above alluded to. But under our statutes, (Rev. Stats. c. 100, §$
18, 19,) perhaps even this rule may be considered as modified, and indeed
effectually changed. By § 18, it is provided that matter in one plea shall be
no evidence in another; and by § 19, that a plea in justification in slander,
that the words spoken were true, shall not be proof of malice.

“‘ The reasons which authorize the admission of this species of evidence,
under the plea of general issue, seem alike to exist, and to require its admis-
sion, where a justification has been pleaded, but the defendant has failed in
sustaining it. It is not offered, in either case, as sustaining the justification,
or making out a defence, but is solely applicable to the question of damages.
I agree with Mr. Justice Thompson, in his opinion, as stated in Foot v. Tracy, .
1 Johns. 47, that ‘it cannot be just, that a man of infamous character should, ,
for the same libellous matter, be entitled to equal damages with the man of
unblemished reputation ; yet such must be the result, unless character be a \
proper subject of evidence before a Jury.’ Ld. Ellenborough, in 1 M. & S.
286, also says, ‘ Certainly a person of disparaged fame is not entitled to the
same measure of damages with one whose character is unblemished ; and it
is competent to show that by evidence.’

“The theory of trials is, that the Jury are to decide solely upon the evi-
dence before them. " If so, they surely cannot make the distinction between
a plaintiff of good name and fame, and one who is really infamous, unless
evidence of this fact is allowed to be given. Cases often occur where the
Jury are entire strangers to the parties, and if not so, they ought not to act
upon the statements of any of their fellows, given in the jury-room, and not
under the sanction of an oath. There seems to be no alternative but to ad-
mit this species of evidence; and this as well when there is a justification
pleaded, as when the defence is on the general issue alone. In the former
case, the evidence is to be applied solely to the question of damages; and it
would be the duty of the Court to advise the Jury that it could not be used
to sustain the justification, but was properly introduced, because both ques-
tions were before them, and if the justification failed, upon the evidence ap/ '
plicable thereto, they would consider the evidence of the character of the
plaintiff, in assessing damages for the injury occasioned by the defamatory
words ; but for other purposes, the evidence would be irrelevant. This evi-
dence should be confined to the general character of the plaintiff, as it existed
before the publication of the slanderous words.” See 7 Met. 88-94. In Wil-
liston v. Smith, 3 Kerr, 443, it was held by the Supreme Court of New Bruns-
wick, that the evidence, in order to be admissible, must relate to the plain-
tiff’s general reputation in respect to the subject-matter of the charge. See
472 LAW OF EVIDENCE. [PART lv.

assailing the defendant with opprobrious language ; or, that
it was made under a mistake which was forthwith cor-
rected ;+ or, that he had the libellous statement from a third
person ;” or, being the proprietor of a newspaper, that he
merely copied the statement from another paper, giving his
authority ;° or, that he was insane, and known to be so, at
the time of speaking the words. And in an action for a
libel upon the plaintiff in his trade of bookseller, as the pub-
lisher of immoral and foolish books, it has been held, that
the defendant, under this issue, may show that the supposed
libel is nothing more than a fair stricture upon the general
nature of the plaintiff’s publications.

§ 425. It is obvious that evidence in mitigation of dam-
ages must be such as involves an admission of the falsity of
the charge. If the defendant would prove that the charge is

 

also, Bowen v. Hall, 12 Met. 232; Hamer v. McFarlin, 4 Denio, 509. [In
Leonard v, Allen, 11 Cush. 241, the inquiries were restricted to the gen-
eral character of the plaintiff for integrity and moral worth, or to his rep-
utation in regard to conduct similar in character to the offence with which
the defendant had charged him. In Watson v. Moore, 2 Cush. 133, which
was an action by the husband and the wife for words, spoken of the wife
by the defendant, charging her with larceny, it was held that the defend-
ant cannot show that the husband keeps a disorderly wife in mitigation of
damages. ]

1 Supra, § 275; Bradley v. Heath, 12 Pick. 163; Infra, § 426.

2 Duncombe v. Daniell, 2 Jur. 32; Maitland v. Goldney, 2 East, 426;
Haynes v. Leland, 16 Shepl. 233 ; sed vid. Mills v. Spencer, Holt’s Cas. 513.
Its effect will depend on the intent with which the name of the author was
mentioned. Dole v. Lyon, 10 Johns. 447. The fact, that the defendant
‘heard the words from another; whose ndme he mentioned at the time of
speaking them, was formerly held a good justification, and therefore pleada-
‘ble in bar. See 1 Stark. on Slander, ch. xiv.} Id. p. 301, note (1), by Wen-
dell. But this doctrine has been solemnly denied in the United States ;
Ibid.; Dole v. Lyon, 10 Johns. 447; and has of late been repudiated in
England. De Crespigny v. Wellesley, 5 Bing. 392.

3 Saunders v. Mills, 6 Bing. 213; Creeve v. Carr, 7 C. & P. 64. See,
also, Mullett v. Hulton, 4 Esp. 248; Wyatt v. Gore, Holt’s Cas. 303; East v.
Chapman, 2 C. & P.570; 1M. & Malk. 46,5. C.

4 Dickinson v. Barber, 9 Mass. 225.

5 Tabart v. Tipper, 1 Campb. 350.
PART Iv.] LIBEL AND SLANDER. 478

true, he can do this only under a special plea in justification ;
it is only evidence of facts, not sufficient to justify, that is
admissible under the general issue, to reduce the damages.!
And if such facts have been specially pleaded in justification,
but the plea is withdrawn before the trial, and the plaintiff
is therefore not prepared with evidence to disprove it, the
defendant may, under circumstances, still be permitted to
prove the facts under the general issue, to effect the amount
of damages to be recovered? It has also been held, that
where the facts, offered in evidence in mitigation of dam-
ages, would be sufficient to justify a part only of the libel,
they must be specially pleaded in justification of that part,
and cannot otherwise be received But these rules, it is
conceived, do not preclude the defendant from showing,
under the general issue, all such facts and circumstances as
belong to the res geste, and go to prove the intent with
which the words were spoken or the publication was made.*
And if a justification is pleaded, the defendant may still
give general evidence, in mitigation of damages, under the
general issue, though he will not be permitted, under a plea
in justification, to give evidence of particular facts and cir-
cumstances respecting the charge, which go merely to the
amount of damages.6

 

1 Underwood v. Parkes, 2 Stra. 1200; Knobell v. Fuller, Peake’s Ad. Cas.
139; Andrews v. Vauduzer, 11 Johns. 38.

2 Kast v. Chapman, 2 C. & P.570; 1M. & Malk. 46, S.C.

3 Vesey v. Pike, 3 C. & P. 512. ,

4 See 2 Stark. on Slander, p. 88, n. (1), by Wendell. In several of the
United States, the course is to plead the general issue in all cases, with a
brief statement of the special matter to be given in evidence under it. It
has been held, that where such statement, in an action of slander, is ruled
out, as not amounting to a justification, the matter is not admissible in evi-
dence in mitigation of damages; for the reason that, so far as it goes, it.
tends to prove the charge to be well founded. Cooper v. Barber, 24 Wend.
105. And see Turrill v. Dolloway, 17 Wend. 426. But the soundness of
these decisions has been combated, with great force of reasoning, by Mr.
Wendell, in the Introduction to his valuable edition of Starkie on Slander,
p. 27-55. /

5 2 Stark. on Slander, p. 83-94, and notes, by Wendell. See also Stone
v. Varney, 7 Law Reporter, 533; Mullett v. Hulton, 4 Esp. 248; Hast v.

40 *
4T4 LAW OF EVIDENCE. [PART IV.

§ 426. To support a special plea in justification, where
crime is imputed, the same evidence must be adduced as
would be necessary to convict the plaintiff upon an indict-
ment for the crime imputed to him; and it is conceived,
that he would be entitled to the benefit of any reasonable
doubts of his guilt, in the minds of the Jury, in the same
manner as in a criminal trial. And if the evidence falls
short of proving the commission of the crime, the Jury may
still consider the circumstances, as tending to show that the
defendant had probable cause to believe the charge to be
true, and to lessen the character of the plaintiff, and there-
fore to reduce the amount of damages! But wherever the
truth of a charge of crime is pleaded in justification, the
plaintiff may give his own character in evidence, to rebut
the charge?

§ 427. Where the libel is upon a lawyer, charging him
with divulging confidential communications made to him by
his client, it is not necessary for the defendant, in support of
a plea in justification, to prove that the communications
were of such strictly privileged character, that the plaintiff
could not have been compelled to disclose them, if called as

Chapman, 2 C. & P. 570; 1 M. & Malk. 46, S. C.; Newton v. Rowe, 1 C.&
K. 616; Crandall v. Dawson, 1 Gilm. Ill. R. 556. But see Larned v. Buf-
fington, 3 Mass. 546.
1 Chalmers v. Shackell, 6 C. & P. 475; Supra, § 408; Gants v. Vinard,
1 Smith, 287; Lanter v. McEwen,’8 Blackf. 495 ; Hopkins v. Smith, 3 Barb.
8. C. R. 599; Shortly v. Miller, 1 Smith, 395; Minesinger v. Kerr, 9 Barr.
312. A charge of polygamy, by marrying three persons, may be justified
by proof of actual marriage to two wives, and cohabitation and reputation as
to the third. Wilmett » Harmer, 8 C. & P. 695.
2 Harding v. Brooks, 5 Pick. 244. Such is the rule in criminal jurispru-
dence. “The object.” said Patteson, J.,‘‘ of laying it before the Jury, is to
. induce them to believe, from the improbability that a person. of good char-
,acter should have conducted himself as alleged, that there is some mistake
‘or misrepresentation in the evidence on the part of the prosecution, and it
is strictly evidence in the case.” Rex v. Stannard, 7 C. & P. 673. Such,
also, is the law in Scotland; Alison’s Prac. p/ 629. And see the State v.
Wells, Coxe, R, 424; Wills, on Circumst. Ev. p. 131. But see, contra,
Houghtaling v. Kelderhouse, 1 Comst. 530; 2 Barb. S. C. R. 149.
a
PART Iv.] LIBEL AND SLANDER. 475

a witness in a court of justice; but it will suffice to show,
that the matters disclosed by the plaintiff were confidential
communications, acquired by him professionally, in the more
enlarged and popular sense of the word.1 a

§ 428. Where the matter is actionable only in respect of
the spécial damage, the plaintiff must generally show express
malice in the defendant. Such is the case in actions for
slander of title. In these cases, the defendant, under the
general issue and in disproof of malice, may give in evi-
dence, that he spoke the words, claiming title in himself ;?
or, as the attorney of the claimant; or, that the words were
true.

§ 429. In actions of this nature, where the general issue is
pleaded, with a justification, the usual course is for the plain-
tiff to prove the libel, and leave it to the defendant to make
out his justification; after which the plaintiff offers all his
evidence rebutting the defénce. And if the plaintiff elects,
in the opening of his case, to offer any evidence to repel the
justification, he is ordinarily required to offer it all in that
stage of the cause, and is not permitted to give further evi-
dence in reply. But this rule is not imperative, the subject
resting in the discretion of the Judge, under the circumstan-
ces of the case.

 

1 Moore v. Terrell, 4B. & Ad.870. Butsee Riggs v. Denniston, 3 Johns,
Cas. 198.

2 Smith v. Spooner, 3 Taunt. 246.

3 Watson v. Reynolds, 1 M. & Malk. 1; 2 Stark. on Slander, pp. 98, 99
[103], [104]; Pitt v. Donovan, 1 M. & S. 639.

4 Browne v. Murray, Ry. & M. 254; Ante, Vol. 1, § 431.

5 For the damages in this action, see supra, tit. DAMAGES, § 275.
a
476 LAW OF EVIDENCE. [PART Iv.

LIMITATIONS.

§ 430. Tus Statute of Limitations is set up in bar either
of rights of entry, or of rights of action. In the former case,
when the defendant claims title to land under a long posses-
sion, he must show that the possession was open and visible,
notorious, exclusive, and adverse to the title of the plaintiff
Tt must be such, that the owner may be presumed to know,
that there is a possession adverse to his title ;? but his actual
knowledge is not necessary, it being sufficient if, by ordinary
observation, he might have known It must be knowingly

‘and designedly taken and held; an occupancy by accident

and mistake, such as through ignorance of the dividing line,
or the like, is not sufficient.4¥ And it must be with exclusive
claim of title in the possessor; and not in submission to the
title of the true owner ete

e

 

1 Taylor v. Horde, 1 Burr. 60; Cowp. 689; Jerritt v. Weare, 3 Price, R.
575; 4 Kent, Comm. 482~489 ; Kennebec Prop’rs v. Springer, 4 Mass. 416 ;
Kennebec Prop’rs v. Laboree, 2 Greenl. 273; Little v. Libby, Id. 242;
Little v. Megquier, Id. 176; Norcross v. Widgery, 2 Mass. 506. [Where a
religious society, whose meeting-house is held in trust by their prudential
committee for maintaining a particular form of worship, vote to adopt, and
do adopt openly another form of .worship, if seems that their possession be-
comes adverse, and, if continued for a sufficient length of time will bar a
suit in equity to enforce the trust. Attorney-General v. Federal Street
Meeting-house, 3 Gray, 1. Possession for forty years by a religious society,
of a meeting-house previously conveyed to their prudential committee in
trust for the support of Presbyterianism, will bar a suit in equity to enforce
the trust. Ib.]

2 Kennebec Prop’rs v. Springer, 4 Mass. 416; Coburn v. Hollis, 3 Met.
125; Bates v. Norcross, 14 Pick. 224; Prescott v. Nevers, 4 Mason, R. 826.

3 Poignard v. Smith, 6 Pick. 172.

4 Brown v. Gay, 3 Green]. 126; Gates v. Butler, 3 Humph. R. 447; Ross
v. Gould, 5 Greenl. 204.

5 Small v. Proctor, 15 Mass. 495; Little v. Libby, 2 Greenl. 242; Peters
v. Foss, 5 Greenl. 182; Teller vy. Burtis, 6 Johns. 197.
*
°

PART Iv.] LIMITATIONS. ATT

§ 431. Where the Statute of Limitations is set up in bar
of a right of action, by the plea of actio non accrevit infra
sex annos, which is traversed, the burden of proof is.on
the plaintiff, to show both a cause of action, and the suing
out of process within the period mentioned in the statute.!
By suing out of process, in these cases, is meant any resort
to legal means for obtaining payment of the debt from the
defendant; such as, filing the claim in set-off, in a former
action between the same parties, which was discontinued ;?
or, filing it with the commissioners on an insolvent estate?
And the suit is commenced by the first or incipient step
taken in the course of legal proceedings, such as the actual
filling up and completing the writ, or original summons,
without showing it served ;* the true time of doing which
may be shown by extrinsic evidence, irrespective of the

 

1 Hurst v. Parker, 1 B. & Ald. 92; 2 Chitty, R. 249, 8. C.; Wilby v.
Henman, 6 Tyrw. 957; 2 Cr. & Mees. 658. [Where the last day upon which
an act must be done, to take a case out. of the Statute of Limitations, falls on
Sunday, the act should be done on or before the previous Saturday. By
Crompton, J., Anonymous, 28 Eng. Law & Eq. 224.]

2 Hunt v. Spaulding, 18 Pick. 521. [Where a statute provides that the
plaintiff may amend his writ by making other parties defendant by due
service, &c., one who is thus made defendant may plead the Statute of Lim-
itations in an action on a joint and several contract, if six years have elapsed
before service upon him. Woodward v. Ware, 87 Maine, 563. How far a
party to a joint contract so summoned in, can so avail himself of the statute,
quere. Ibid.]

3 Guild v. Hale, 15 Mass. 455.

4 Gardiner v. Webber, 17 Pick. 407; Williams v. Roberts, 1 Cr.M. & R.
676; 5 Tyrw. 421; Burdick v. Green, 18 Johns. 14; Beekman v. Satterlee,
5 Cowen, 519; Johnson v. Farwell, 7 Greenl. 8370; Parker v. Colcord, 2 N.
Hamp. R. 36; Thompson v. Bell, 6 Monroe, R. 560. But see Bonnet v.
Ramsay,.3 Martin, R. 776; Jencks v. Phelps, 4 Conn. 149; Perkins v. Per-
kins, 7 Conn, 558; Day v. Lamb, 7 Verm. 426. [The words in the statute
were by “an action duly commenced,” and they were held to mean an ac-
tion on a claim “actually declared upon in a proper writ returnable accord-
ing to law.” Woods v. Houghton, 1 Gray, 580. A suit was commenced
within the time prescribed by the statute, but no declaration was filed there-
in until seven years after, and it was held that the claim was not barred by
the statute. Hemphill v. McClimans, 24 Penn. State R. 367.]
478 LAW OF EVIDENCE. [PART Iv.

date of the process; though the date of the process is
prima facie evidence of the time when it was sued out.
So, the true time of filing the declaration may be shown,
without regard to the term of which it is intituled® The
issuing of a latitat is the true commencement of a suit by
" pill of Middlesex ;* and so is the issuing of a capias, in the
Common Pleas. The filing of a bill in Chancery is also
a good commencement of an action, unless the bill is dis-
missed on the ground that the subject is cognizable only at
law.6

§ 432. If writ is abated, by the death of the plaintiff, or
by her marriage, if a feme sole, the operation of the statute:
is prevented, by the commencement of a new suit, by the
proper parties, within a reasonable time; and this, where it
is not otherwise regulated by statute, is ordinarily under-
stood to be one year, this period having been adopted from
the analogy of the fourth section in the Statute of Limita-
tions of James I., providing for the cases of judgments
reversed or arrested.?’ But this rule does not apply to an

 

1 Bilton v. Long, 2 Keb. 198, per Kelyng, C. J.; Johnson v. Smith, 2 Burr.
950, 959; Young v. Kenyon, 2 Day, 252.

2 Bunker v. Shed, 8 Met. 150.

3 Granger v. George, 5 B. & C. 149; Snell v. Phillips, Peake’s Cas. 209 ;
Robinson v. Burleigh, 5 N. Hamp. 225.

4 Johnson v. Smith, 2 Burr. 950.

5 Leader v. Moxon, 2 W. Bl. 925. Where the writ and declaration dis-
agree, as, where the writ is in trespass, and the declaration is in assumpsit,
as is practised in thé Courts of King’s Bench and Common Pleas, it must be
shown, not only that the writ was seasonably issued, but that it was entered
and continued, down to the time of filing the declaration ; for otherwise it
will not appear that the writ was sued out for the present cause of action.
But in the United States this is seldom necessary ; and where the course of
proceeding would seem to require it, the continuances are mere matters of
form, and may be entered at any time. See Angell on Limitations, ch. 28 ;
Schlosser v. Lesher, 1 Dall. 311; Beekman v. Satterlee, 5 Cowen, 519;
Soulden v. Van Rensselaer, 3 Wend. 472; Davis v. West, 5 Wend. 63.

6 Gray v. Berryman, 4 Munf. 181. See further, Angell on Limitations,
ch. 28.

7 Kinsey v. Heyward, 1 Ld. Raym. 434, per Treby, C. J.; Forbes v. Ld. |
PART IV.] LIMITATIONS. 479

action determined by voluntary abandonment by the plaintiff,
as in case of a nonsuit.

§ 433, In cases of foré, and in actions on the case, sound-
ing in tort, a distinction is to be observed between acts wrong-
ful in themselves, which directly affect the rights of the plain-
tiff, and for which, therefore, an action may be instantly
maintained without proof of actual damages, and those cases
where the injury is consequential, and the right of action is
founded on the special damages suffered by the plaintiff. In
the former class of cases, the statute period begins to run
from the time when the act is done, without regard to any
actual damages, or to any knowledge by the party injured.
But in the latter cases, it runs from the time when the spe-
cial damage accrued. Thus, in slander where the words
impute an indictable offence, the time runs from the speak-
ing of them ; but if they are actionable only in respect of the
special damage, as in slander of title, it runs from the time
when this damage was sustained.2. So in ¢rover, the time is
computed from the act of conversion of the goods. And in
actions for official or professional negligence, the cause of

 

Middleton, Willes, 259, note (c); Matthews v. Phillips, 2 Salk. 424, 425;
Angell on Limitations, ch. 28; Huntington v. Brinkerhoff, 10 Wend. 278.
[2 Saund. 68 h, note; Fynch v. Lambe, Cro. Car. 294; Coffin v. Cottle, 16
Pick. 386 ; Woods v. Houghton, 1 Gray, 580; Downing v. Lindsay, 2 Barr.
385; Baker v. Baker, 13 B. Mon. 406; Givens v. Robbins, 11 Ala. 158.
And where the statute provides for the commencement of a new action
within one year, “if the writ shall be abated or the action otherwise defeated
for any matter of form,” the abatement or dismissal for want of jurisdiction
of a trustee process brought in a county in which neither of the trustees re-
sides, is an abatement or dismissal “for a matter of form” within the mean-
ing of the statute. Woods v. Houghton, 1 Gray, 580.]

1 Richards v. Maryland Ins. Co. 8 Cranch, 84, 93; Harris v. Dennis, 1 S.
& R. 236. But see Cretien v. Theard, 2 Martin, R. 747. See also, Swan
vy. Littlefield, 6 Cush. 417; Bullock v. Dean, 12 Met. 15. The period of
limitation is not prolonged where the writ is abated by being brought in the
wrong county. Donnell v. Gatchell, 38 Maine, 217.]

2 Law v. Harwood, Cro. Car. 140; Saunders v. Edwards, 1 Sid. 95.

3 Crompton v. Chandless, 4 Esp. 20, per Ld. Kenyon; Granger v. George,
5 B. & C. 149; Denys v. Shuckburg, 4 Y. & C. 42.
480 LAW OF EVIDENCE. [PART IV.

action is founded on the breach of duty, which actually in-
jured the plaintiff, and not on the consequential damage.
Thus, in an action against an attorney, for neglect of profes-
sional duty, it has been held that the Statute of Limitations
begins to run from the time when the breach of duty was
committed, and not from the time when the consequential
damage accrued.! So, in an action against the sheriff, for
an insufficient return upon a writ, by reason whereof the
judgment was reversed, the statute begins to run from the
time of the return, and not from the reversal of the judg-
ment2 But in an action for taking insufficient bail, the
injury did not arise to the plaintiff, until he had recovered
judgment, and the principal had avoided, for until then, the
bail might have surrendered the principal; and therefore the
statute begins to run from the return of non est inventus on
the execution.

§ 434. The same distinction has been recognized, in ex-
pounding private and local statutes, which have limited the
remedy to a certain period of time from the act done!
Where the act was in itself lawful, so far as the rights of
the plaintiff were concerned, but occasioned a subsequent
and consequential damage to him, the time has been com-
puted from the commencement of the damage, this being
the act done, within the meaning of the law. But where
the original act was in itself a direct invasion of the plain-
tiff’s rights, the time has been computed from such original

 

1 Howell v. Young, 2 C. & P. 238; 5 B. & C. 259; S. C. confirmed in
Smith v. Fox, 12 Jur. 130; Brown v. Howard, 4 J. B. Moore, 508; 2B. &
B. 73, 8. C.; Short v. McCarthy, 3 B. & Ald.626. See also Leonard v. Pit-
ney, 5 Wend. 30; The Bank of Utica v. Childs, 5 Cowen, 238; Stafford v.
Richardson, 15 Wend. 302; Argall v. Bryant, 1 Sandf. 98.

2 Miller v. Adams, 16 Mags. 456.

3 Rice v. Hosmer, 12 Mass. 127,130; Mather v. Green, 17 Mass. 60.

4 Whether a mere nonfeasance and omission can be regarded as an act
done, so as to be within the protection of these statutes, has been much
doubted. See Blakemore v. Glamorganshire Canal Co. 3 Y. & J. 60; Gaby
»v. Wilts. & Berks. Canal Co. 3M. & 8.580; Umphelby v. McLean, 1 B..&
Ald. 42; Smith v. Shaw, 10 B. & C, 277, per Bayley, J.
PART Iv.| LIMITATIONS. 481

act. Thus, where a surveyor of highways, in the execution
of his office, undermined a wall adjoining a highway, and
several months afterwards, it fell, the statute period limiting
the remedy was computed from the falling of the wall, this
alone being the specific wrong for which an action was
maintainable. And the same principle has been applied
to. similar acts done by commissioners and others, acting
under statutes.2— On the other hand, where the action is for
an illegal seizure of goods under the revenue laws, though
they were originally stopped for examination only, and after-
wards finally and absolutely detained, the time is computed
from the original act of stopping the goods, and not from
the commencement of special damages, or from the final
detention, or from the redelivery of the goods.? So, where
a trespass was ‘committed by cutting down trees, which the
defendant afterwards sold, it was held that the statute at-
tached at the time of cutting the trees, and not at the time
of sale.*

§ 435. In cases of contract, the general principle is, that the
statute attaches as soon as the contract is broken; because
the plaintiff may then commence his action. And though
special damage has resulted, yet the limitation is computed
from the time of the breach, and not from the time when the
special damage arose.® If money is lent, and a bill of ex-

 

1 Roberts v. Read, 16 East, 215 ; 6 Taunt. 40, n. (6); Wordsworth v. Har-
ley, 1 B.& Ad. 391.

2 Gillon v. Boddington, 1 C. & P. 541; Lloyd v. Wigney, 6 Bing. 489 ;
Sutton v. Clarke, 6 Taunt. 29. But see Smith v. Shaw, 10 B. & C. 277;
Heard v. The Middlesex Canal, 5 Met. 81.

3 Gordon v. Ferris, 2H. Bl. 14; Saunders v. Saunders, 2 Kast, 254; Crook
v. McTavish, 1 Bing. 167.

4 Hughes v. Thomas, 13 East, 474, 485.

5 Battéry v. Faulkner, 3 B. & Ad. 290; Short v. McCarthy, Id. 626. If
the right of action was in a trustee, it is barred by his neglect to sue, though
the cestui que trust was under disability. Wyche v. E. Ind. Co. 3 P. Wms.
309. [A contracted to sell B certain salt, and, it having been destroyed, in
November, 1831, B demanded its delivery, and was refused. Negotiations
took place as to whether B was entitled to compensation, and they were con-

VOL. II. 41
482 LAW OF EVIDENCE. [PART Iv.

change is given for the payment at a future day, the latter
period is the time when the limitation commences. If a bill
is payable at a certain time after sight, or a note is payable
at so many days after demand,’ the statute attaches only
upon the expiration of the time after presentment or de-
mand. But where the right of action accrues after the death
of the party entitled, the period of limitation does not com-
mence until the grant of administration ; for until then, there
is no person capable of suing.+ Where the action is against
a factor, for not accounting and paying over, the statute
begins to run from the time of demand; for until demand
miade, no action accrued against him.6 And where a con-
tract of service is entire, as for a year, or, for a voyage, the
limitation does not commence until the whole term of service
is expired.6

 

tinued until 1838, when A finally refused compensation, and soon B brought
his action, and it was held barred by the statute.* East India Co. v. Paul,
1 Eng. Law & Eq. 44. And where a person agrees to a settlement under a
mistake, which he had the means of ascertaining at the time, and neglects to
ascertain it and have it corrected more than six years, and then brings an
action, it will be barred by the statute. Steele v. Steele, 25 Penn. State R.
(1 Casey,) 154.]

1 Wittersheim v. Countess of Carlisle, 1 H. Bl. 631.

2 Holmes v. Kerrison, 2 Taunt. 323.

3 Thorpe v. Booth, Ry. & M. 388; Thorpe v. Combe, 8 D. & R. 347;
Anon. 1 Mod. 89. [Where bills of exchange are made payable at a partic-
ular place, no action can be maintained until after a demand at that place
and a dishonor there. Therefore the Statute of Limitations begins to run
from the time of such demand, and not from the time when the bills were
payable according to their tenor. Picquet v. Curtis, 1 Sumner, 478. A
promise in writing, attested by a witness, to pay a note “at any time within
_six years from this date,” is a promise to pay on demand, and the Statute of
Limitations begins to run against a claim founded on such written promise,
from the date. Young v. Weston, 39 Maine, 492.]

4 Murray v. E. I. Co. 5 B. & Ald. 204. And see Cary v. Stephenson, 1
Salk. 421; Pratt v. Swaine, 8 B. & C. 285. In some of the United States,
cases of this kind are specially provided for by statutes, extending ‘he period
of limitation for a further definite time.

5 Topham v. Braddick, 1 Taunt. 572, And see Pecke v. ‘aincien: W.
Jones, 329.

6 Ewer v. Jones, 6 Mod. 26; [Jones v. Lewis, 11 Texas, 359; Walker v.
Goodrich, 16 Ill. 841.
PART IV.] LIMITATIONS. 483

§ 436. The bar of the Statute of Limitations may be
avoided by showing, (1.) that the plaintiff was under any
disability mentioned in the statute; or, (2.) that the claim
has been recognized by the defendant as valid, by am acknowl-
edgment, or a new promise, within the statute period; or,
(3.) that the cause of action was fraudulently concealed by
the defendant, until within that period.

§ 437. (1.) The disabilities of infancy, coverture, and in-
sanity, will be found treated under their appropriate heads.
The disability arising from absence out of the country, is
usually expressed by being beyond sea; but the principle on
which this exception is founded, is, that no presumption can
arise against a party for not suing in a foreign country, nor
until there is somebody within the jurisdiction whom he can

 

Where the surety ona promissory note paid the holder*before the note
was payable by its terms, the cause of action against the principal for in-
demnity, was held to accrue when the note became due, according to its
tenor, and not before. Tillotson ». Rose, 11 Met. 299. So, where a sub-
sequent indorser pays a note, the statute as against a prior indorser, begins
torun on the payment of the money. Barker v. Cassidy, 16 Barb. 177 ;
Scott v. Nichols, 27 Miss. 94. Where there is a contract to save harmless
from certain payments, the statute runs from ‘the time of the payment, and
not of the execution of the contract. Hall v. Thayer, 12 Met. 130.

The cause of action against an officer for the taking of insufficient bail by
his deputy, accrues on the return of non est inventus upon the execution
against the principal, and the statute runs from that time. West v. Rice, 9
Met. 564. The cause of action against an officer for not paying money col-
lected by him on execution, does not accrue until demand is made on him
for payment, and the statute begins to run from the time of the demand. Wes-
ton v. Ames, 10 Met. 244. It isthe same with an agent. Merlev. Andrews,
4 Texas, 200. Where a bill of exchange was given in blank, in 1840, and
was not filled up until 1852, and a Jury found that it was not filled up within
a reasonable time, it was held, that the statute ran from the time the bill be-
came due as filled up, and not from the time when it would have become
due if completed when it was accepted in blank. Montague v. Perkins, 22
Eng. Law & Eq. 516. A bond was conditioned to pay an outstanding
mortgage, on land bought by the mortgagee, and it was held, that a right of
action would accrue within a reasonable time after the mortgagee would be
pbliged to receive payment, and the statute would commence running from
that time. Gennings v. Norton, 35 Maine, 308.]_, .
484 LAW OF EVIDENCE. [PART Iv.

sue;! and therefore the words “ beyond sea,” in the statute
of any State, are expounded as equivalent to being “ out of
the State,’ and receive the same construction.2 And the
latter form of words is held equivalent to being “ out of the
actual jurisdiction ;” that is, beyond the reach of process ;
so that where a part of the territory of a State, in time of
war, is actually and exclusively occupied by the enemy, a
person within the enemy’s lines is out of the State within
the meaning of the Statute of Limitations. The rule, as
applied to a defendant, has therefore been limited to the case
where he was personally absent from the State, having no
attachable property within it A foreigner, resident abroad,
is not within the operation of the statute, even though he
has an agent, resident in the country.

§ 438. In the case of partners the absence of one from
the country does not prevent the statute from attaching, for,

e

 

1 Per Best, C. J., in Douglas v. Forrest, 4 Bing. 686.

2 Faw v. Roberdeau, 3 Cranch, 177, per Marshall, C. J.; Murray v. Ba-
ker, 2 Wheat. 541; Angell on Limitations, ch. 9. In some of the United
States, the disability of the plaintiff is limited, by statute, to his absence from
the United States; and that of the defendant, to his absence from the par-
ticular State in which he resided. [Keeton v. Keeton, 20 Mis. (5 Bennett,)
530; Thomasum v. Odum, 23 Ala. 480; Ruckmaboye v. Mottichund, 32
Eng. Law & Eq. 84.]

3 Sleght v. Kane, 1 Johns. Cas. 76, 81.

4 White v. Bailey, 2 Mass. 371; Little v. Blunt, 16 Pick. 359.

5 Strithorst v. Graeme, 2 W. Bl. 723; 3 Wils. 145, 8. C.; Wilson v. Ap-
pleton, 17 Mass. 180. If a plaintiff be beyond sea at the time of the ac-
tion accruing, he may sue at any time before his return, as well as within the
time limited by statute for the commencement of a suit after his return. Le
Veux v. Berkeley, 5 Ad. & El. 836, N.S. And see Townsend v. Deacon,
13 Jur. 366. [See also Von Hemert v. Porter, 11 Met. 210; Lafonde v.
Ruddock, 24 Eng. Law & Eq. 239; Townes v. Mead, 29 Ib, 271. A party
who is absent from the State, but has a home therein to which he intends to
return, does not so “ reside without the State,” as to interrupt the time lim-
ited for the commencement of an action. Drew v. Drew, 37 Maine, 389;
Buckman v. Thompson, 38 Ib. 171. The disability to sue arising from being
without the United States, is removed by the return of the party to any one
of the States. Varney v. Grows, 37 Maine, 306.]
PART Iv.] LIMITATIONS. 485

the others might have sued for all! Nor does the disability
of one coparcener, or tenant in common, preserve the title of
the other; for each may sue for his part? But in the case
of joint-tenants and joint-contractors, it is otherwise.*

§ 439. When the time mentioned in the statute has once
begun to run, it is a settled rule of construction, that no
disability, subsequently arising, will arrest its progress.‘ If
therefore, the party be out of the jurisdiction when the cause
of action accrues, and afterwards returns within it, the statute
attaches upon his return. But in the case of a defendant,
his return must be open, and such as would enable the plain-
tiff, by using reasonable diligence, to serve process upon
him. If it was only temporary and transient, in a remote
part of the State, so that it could not have been seasonably
known to the plaintiff; or if the defendant concealed him-
self, except on Sundays, so that he could not be arrested, it
is not such a return as to bring the case within the operation
of the statute.

§ 440. (2.) Where the statute is pleaded in bar, and the
plaintiff would avoid the bar by proof of an acknowledgment
of the claim, this can be done only under a special replica-

 

1 Perry v. Jackson, 4 T. R. 516, 519; Pendleton v. Phelps, 4 Day, 476.

2 Roe v. Rowlston, 2 Taunt. 441; Doolittle v. Blakesley, 4 Day, 265. ¢

3 Marsteller v. McClean, 7 Cranch, 156; Fannin v. Anderson, 9 Jur. 969;

14 Law Jour. 282, N. 8.; [Sturges v Longworth, 1 Ohio State R. 544.
And there is no right of contribution between defendants who have pro-
tected themselves against a demand by setting up the statute, and other
defendants who might equally have set up the statute, but who, having
neglected to do so, are found by the decree to be liable to the plaintiffs.
Fordham v. Wallis, 17 Eng. Law & Eq. 182.]

4 Doe v. Jones, 4 T. R. 300, 310; Angell on Limitations, pp. 146, 147;
Smith v. Hill, 1 Wills, 134. In some of the United States, the rule is differ-
ently established, by statutes. See Rev. Stat. of Massachusetts, ch. 120,§ 9;
Rev. Stat. Maine, ch. 156, § 28.

’ 5 Fowler v. Hunt, 10 Johns. 464, 467; White v. Bailey, 3 Mass. 271, 2738;
Byrne v. Crowninshield, 1 Pick. 263; Little v. Blunt, 16 Pick. 359; Rug-
gles v. Keeler, 8 Johns. 264; Crosby v. Wyatt, 10 Shepl. 156.

41 *
486 LAW OF EVIDENCE. [PART Iv.

tion of a new promise, within the period limited It is to be
observed, that the Statute of Limitations is regarded by the
Courts as a wise and beneficial law, not designed merely to
raise a presumption of payment of a just debt, from lapse of
time, but to afford security against stale demands, after the
true state of the transaction may have been forgotten, or be
incapable of explanation, by reason of the death or removal
of witnesses.2 Wherever, therefore, the bar of the statute is
sought to be removed by proof of a new promise, the promise,
as a new cause of action, ought to be proved in a clear and
explicit manner, and be in its terms unequivocal and determi-
nate In the absence of any express statute to the contrary,
parol evidence of a new promise would be sufficient ; but in
England, and in several of the United States,’ no acknowl-
edgment or promise is now sufficient to take any case out of
- the operation of this statute, unless such acknowledgment or
promise is made or contained by or in some writing, signed

 

1 In those States where general pleading is allowed in all cases, any evi-
dence, showing that the debt is or is not subject to the operation of the
statute, is, of course, admissible under such pleading. See Carshore vu.
Huyck, 6 Barb. 8. C. R. 583; Henry v. Peters, 5 Geo. 311; Trymer v. Pol-»
lard, 5 Grat. 460; [Frohock v. Pattee, 38 Maine, 103; Theobald ». Stinson,
Tb. 149; Esselstyn v. Weeks, 2 Kernan, (N. Y.) 685; Penfield v. Jacobs,
21 Barb. 335 ; Bloodgood v. Bruen, 4 Selden, (N. Y.) 362.]

2 Bell v. Morrison, 1 Peters, S. C. Rep, 360, per Story, J.; Mountstephen
v. Brooke, 3 B. & Ald. 141, per Abbott, C. J.; Tanner v. Smart, 6 B. & C.
603. The legal effect of acknowledging a debt, barred by the statute, is
that of a promise to pay the old debt; which promise the law implies from
the acknowledgment, and for which the old debt is a consideration in law.
But if the promise is limited to payment at a particular time, or in a certain
manner, or out of a specified fund, the creditor can claim nothing more
than the new promise gives him; for the old debt is revived only so far as
to form a consideration for the new promise. Phillips v. Phillips, 3 Hare,
299. If, therefore, the new promise was not made until after action brought,
it cannot prevent the operation of the statute. Bateman v. Pinder,3 Ad. &
El. 574,N. 8.

3 Bell v. Morrison, 1 Peters, S. C. Rep. 362; Cambridge v. Hobart, 10
Pick. 232; Gardiner v. Tudor, 8 Pick. 206; Bangs v. Hall, 2 Pick. 368.
[A new promise made either before or after the Statute of Limitations has
commenced to run, will avoid it. Carlton v. Ludlow Woollen Mill, 1 Wil-

liams, (Vt.) 496.]
PART IV.] LIMITATIONS. 487

by the party chargeable thereby! It is not necessary, how-
ever, that the promise should be express; it may be raised by
implication of law, from the acknowledgment of the party?
But such acknowledgment ought to contain an unqualified
and direct admission of a present subsisting debt, which the
party is liable and willing to pay. If there be accompanying
circumstances, which repel the presumption of a promise or
intention to pay; or, if the expressions be equivocal, vague,
and indeterminate, leading to no certain conclusion, but at
best to probable inferences, which may affect different minds
in different ways; it has been held that they ought not to go
to a Jury, as evidence of a new promise, to revive the cause
of action? If the new promise was coupled with any con-

 

19 Geo. 4, ch. 14; Rev. Stat. Massachusetts, ch. 120, § 13; Rev. Stat.
Maine, ch. 146, § 19; Ringgold v. Dunn, 3 Eng. 497. [An oral admission
by the defendant that he made a payment on the demand in suit within six
years before the suit was commenced, is competent evidence to take the
case out of the statute. Williams v. Gridley, 9 Met. 482. See also Cleave
v. Jones, 4 Eng. Law & Kg. 514, overruling Willis v. Newham, 3 Y. & J.
518; Sibley v. Lambert, 30 Maine, 353.]

2 Angell on Limitations, ch. 20. [A mortgage deed duly executed, ac-
knowledged, and recorded, but not delivered, found among the papers of
the mortgagor after his death, to secure the payment to the mortgagee of a
demand barred by the Statute of Limitations, is not sufficient to prevent
the operation of the statute. Merriam ». Leonard, 6 Cush. 161. If the
maker of a note agrees with the holder, to pay him a certain proportion of
the amount due, in full discharge of the note, and afterwards makes and
signs a note for the amount so promised, and offers it to the holder, in pay-
ment of the first note, and the holder refuses to receive it, this is not such
an acknowledgment or new promise as will take the first note out of the
statute. Smith v. Eastman, 8 Cush. 355. See also Waterman v. Burbank,
8 Met. 352. An acknowledgment of indebtedness in an answer in equity is
sufficient to take the case out of the statute. Brigham v. Hutchins, 1 Wil-
liams, (Vt-) 569.]

3 Bell v. Morrison, 1 Peters, §. C. Rep. 362-365; Bell v. Rowland,
Hardin, 301; Angell on Limitations, ch. 21; Bangs v. Hall, 2 Pick. 368;
Stanton v. Stanton,.2 N. Hamp. 426; Ventris v. Shaw, 14 N. Hamp. 422;
Jones v. Moore, 5 Binn. 573; Perley v. Little, 3 Greenl. 97; Porter v. Hill,
4 Greenl. 41; Deshon ‘v. Eaton, Id. 413; Miles v. Moodie, 8 S. & R. 211 ‘
Eckert v. Wilson, 12 S. & R. 397; Purdy v. Austin, 3 Wend. 187; Sum-
ner v. Sumner, 1 Met. 394; Allcock v. Ewen, 2 Hill, S. Car. Rep. 326;
488 LAW OF EVIDENCE. [PART IV.

dition, the plaintiff must show that the condition has been
performed, or performance duly tendered! And if it were a
promise to pay when he is able, the plaintiff must show that
he is able to pay.”

§ 441. Upon this general doctrine, which, after much con-
flict of opinion, is now well established, it has been held,
that the acknowledgment must not only go to the original |
justice of the claim, but it must admit that it is still due.’
No set form of words is requisite ; it may be inferred even
from facts, without words. It is sufficient if made to a
stranger,® or, in the case of a negotiable security, if made to
a prior holder ;* or in any case, if made while the action is
pending.’ If it is made by the principal debtor, it binds the
surety ;® or, if by the guardian of a spendthrift, it binds the

 

Humphreys v. Jones, 14 M. & W.1; 9 Jur. 333; Robbins v. Farley, 2
Strobh. 348; Christy v. Flemmington, 10 Barr, 129; Harman »v. Clairborne,
1 La. Ann. R. 342; [Gibson v. Grosvenor, 4 Gray, 606; Mumford v. Free-
man, 8 Met. 432; Tucker v. Haughton, 9 Cush. 350; Brown v. Edes, 37
Maine, 318; Douglas v. Elkins, 8 Foster, (N. H.) 26; Phelps v. William-
son, 26 Vt. 230; Hayden v. Johnson, Ib. 768; Buckingham v. Smith, 23
Conn. 453; Bloodgood v. Bruen, 4 Selden, (N. Y.) 362; Shitler v. Bremer,
23 Penn. ‘State R. 413; Beck v. Beck, 25 Penn. State R. 124; Collinson
v. Margesson, 3 H. & N. 954.]

1 Wetzell v. Bussard, 11 Wheat. 309; [Kampshall v. Goodman, 6 McLean,
189.]

2 Davies v. Smith, 4 Esp. 36; Tanner v. Smart, 6 B. & C. 603; Scales »v.
Jacob, 8 Bing. 538; Ayton v..Bolt, 4 Bing. 105; Haydon v. Williams, 7
Bing. 163; Edmunds v. Downes, 2 C. & M. 459; Robbins v. Otis, 1 Pick.
368; 3 Pick. 4; Gould v. Shirley, 2M. & P.581. The statute will in such
case begin to run from the time when the debtor became able to pay, with-
out respect to the creditor’s knowledge of that fact. Waters v. Thanet, 2
Ad. & EL. 757, N.S. -

3 Clementson v. Williams, 8 Cranch, 72.

4 Whitney v. Bigelow, 4 Pick. 110 ; East Ind. Co. v. Prince, Ry. & M. 407.

5 Ibid.; Halladay v. Ward, 8 Campb. 42; Mountstephen v. Brooke, 3 B.
& Ald. 141; Sluby v. Champlin, 4 Johns. 461. It seems that, in England,
since the statute of 9 Geo. 4, c. 15, an acknowledgment made to a stranger
would not be sufficient. Grenfell v. Girdlestone, 2 Xx, & C, 622.

6 Little v. Blunt, 9 Pick. 488.

7 Yea v. Fouraker, 2 Burr. 1099; Danforth v. Culver, 11 Johns. 146. -

8 Frye v. Barker, 4 Pick. 382.
PART Iv.] LIMITATIONS. 489

ward ;1 and if by one of several joint debtors, it binds them
all? And where the plaintiff proves a general acknowledg-
ment of indebtment, the burden of proof is on the defendant,
to show that it related to a different demand from the one in
controversy.? Nor is it necessary, unless so required by ex-
press statute, that the acknowledgment'should be in writing,
even though the original contract is one which was required
to be in writing by the Statute of Frauds; for it was the
original contract in writing which fixed the defendant’s lia-
bility, and the verbal acknowledgment within six years only
went to show that this liability had not been discharged.

§ 442. It has been already observed, that an acknowledg-
ment, in order to remove the bar of the statute, must be such
as raises an implication of a promise to pay. It must be a
distinct admission of present indebtment. If, therefore, the
party at the time of the conversation, or in the writing,
should state that he had a receipt, or other written discharge

 

1 Manson v. Felton, 13 Pick. 206.

2 See ante, Vol. 1, §§ 174, 176; Patterson v. Patterson, 7 Wend. 441.
But where one party was a feme covert at the time of the new promise by
the other, it was held not sufficient to charge her and her husband. Pittam
v. Foster, 1 B. & C. 248. The question whether an acknowledgment by one
partner is sufficient to avoid the statute as to all, was raised in Clark v. Alex-
ander, 8 Jur. 496; 8 Scott, N.R.147. But see Walton v. Robinson, 5 Ired.
841; Wheelock v. Doolittle, 3 Washb. 440, that it is, even after dissolution.
Semb. that an acknowledgment by one of several executors is not. Scholey
v. Walton, 12 M. & W. 510, per Parke, B.

3 Whitney v. Bigelow, 4 Pick. 110; Frost v. Bengough, 1 Bing. 266;
Baillie v. Ld. Inchiquin, 1 Esp. 435. But see Sands v. Gelston, 15 Johns.
511; Clarke v. Dutcher, 9 Cowen, 674.

4 Gibbons v. McCasland, 1 B. & Ad. 690. [In Massachusetts the new
promise by which a debt is taken out of the operation of the Statute of Lim-
itations does not create a new and substantive cause of action, but operates
only as a waiver of a defence which the law had furnished to an old promise
and the removal of a statute bar. It is the original debt which constitutes
the ground of action and forms the basis of 2 judgment. Isley v. Jewett, 3
Met. 439; Way v. Sperry, 6 Cush. 241; Foster v. Shaw, 2 Gray, 153; soin
New York; Philips v. Peters, 21 Barb. 351; Winchell v. Bowman, Ib. 448.
But see Kampshall v. Goodman, 6 McLean, 189, which decides that the ac-
tion must be on’the new promise.]
490 LAW OF EVIDENCE. [PART IV.

of the claim, which he would or could produce, this does not
take the case out of the statute, even though he should fail
to produce the discharge. So, if he admits that the claim
has been previously made, but denies that he is bound to
pay it, whether because of its want of legal formality, as, for
example, a stamp,’ or of its want of consideration,’ or the
like. If the language is ambiguous, it is for the Jury to
determine, whether it amounts to an explicit acknowledg-
ment of the debt, or not. But if it is in writing, and is
clear, either as an acknowledgment, or otherwise, the Judge
will be justified in so instructing the Jury!

.§ 443. The terms of the acknowledgment, moreover, must
all be taken together, so that it may be seen, whether, upon
the whole, the party intended distinctly to admit a present
debt or duty. If, in affirming that the debt, once due, has
been discharged, he claims it to have been discharged by a
writing, to which he particularly refers with such precision,
as to exclude every other mode, and the writing being pro-
duced or proved, does not in law afford him a legal discharge,
his acknowledgment will stand unqualified, and will bind
him.’ So, if the defendant challenges the plaintiff to pro-

1 Brydges v. Plumptre, 9 D. & R. 746; Birk v. Guy, 4 Esp. 184.

2 A’Court v. Cross, 8 Bing. 329.

3 Easterby v. Pullen, 3 Stark. 186; De la Torre v. Barclay, 1 Stark. 7;
Miller v. Lancaster, 4 Green]. 159; Sands v. Gelston, 15 Johns. 511.

4 Lloyd v. Maund, 2 T. R. 760; Hast Ind. Co. v. Prince, Ry. & M. 407.
In the Circuit Court of the United States, it has been held, that the suffi-
ciency of the evidence to take a case out of the statute, is a question of law
for the Court; and that the Jury are only to determine whether the evidence
applies to the debt in suit, and to what part of it. Penaro v. Flournoy, 9
Law Reporter, 269. ,

5 College v. Horn, 3 Bing. 119; Brigstocke v. Smith, 1 C. & M. 483; 2
Tyrw. 445.

6 Partington v. Butcher, 6 Esp. 66. This is doubtless the case alluded to
by Gibbs, C. J., in Hellings v. Shaw, 1 J. B. Moore, 340, 344; where he is
made to confine his observation to the case of a discharge by a written instru-
ment. His remarks, as reported in the same case, in 7 Taunt. 612, are gen-
eral, and applicable to any other mode of discharge; but to this unlimited
extent their soundness is questioned by Bailey, J., in Beal v. Nind, 4 B. &
Ald. 568,571. And see Dean ». Pitts, 10 Johns. 35.
PART IV.] LIMITATIONS. 491

duce a particular mode of proof of his liability, such as, to
prove the genuineness of the signature, or the like, and he
does so, the implied acknowledgment will be sufficient to
take the case out of the statute.! But if the acknowledg-
ment is accompanied with circumstances or declarations,
showing an intention to insist on the benefit of the statute,
it is now held that no promise to pay can be implied? And
if the cause of action arose from the doing or omitting to do
some specific act at a particular time, an acknowledgment,
within six years, that the contract has been broken, is held
insufficient to raise the presumption of a new promise to
perform the duty.

§ 444. Where a specific sum of money was due, as, upon
a promissory note, the payment of a part of the debt is also
held at Common Law to be a sufficient acknowledgment,
that the whole debt is still due, to authorize the presump-
tion of a promise to pay the remainder; though it seems it
would not be sufficient, if no specific sum was due, but the
demand was only for a quantum meruit.4 But it is the pay-
ment itself, and not the indorsement of it on the back of the

 

1 Hellings ». Shaw, 7 Taunt. 612, per Gibbs, C. J.; Seward v. Lord, 1
Greenl. 163 ; Robbins v. Otis, 1 Pick. 370; 3 Pick. 4.

2 Coltman v. Marsh, 3 Taunt. 380; Rowcroft v. Lomas, 4 M. & S. 457;
Bangs v. Hall, 2 Pick. 368; Knott v. Farren, 4 D. & K. 179; Danforth v.
Culver, 11 Johns. 146.

3 Boydell v. Drummond, 2 Campb. 157; Whitehead v. Howard, 2 B. &
B. 872; Wetzell v. Bussard, 11 Wheat. 309.

4 Burn v. Bolton, 15 Law Journ..97, N. 8.; Zent v. Hart, 8 Barr, 337.
But see Smith v. Westmoreland, 12 S. & M. 663. [Payment of part of the
debt would seem not to be conclusive in all cases to authorize the presump-
tion of a promise to pay the remainder. The circumstances that attend
such payment may wholly disprove a promise to pay any more. Wainman
v. Kynman, 1 Welsb. H. & G. 118; Merriam v. Bayley, 1 Cush. 77; Brad-
field v. Supper, 7 Eng. Law & Eq. 541, and note. An oral admission by the
defendant that he made a payment of the demand jn suit within six years
before the suit was commenced, is competent evidence to take the case out
of the statute. Gridley v. Williams, 9 Met. 482; Sibley v. Lambert, 30
Maine, 353; Cleave v. Jones, 4 Eng. Law & Eq. R. 514, overruling Willis
v. Newham, 3 Y. & J. 518.]
» 492 LAW OF EVIDENCE. [PART Iv.

security, that has this effect; though where the indorsement
is proved to have been actually made before the cause of
action was barred by the statute, and consequently against
the interest of the party making it, the course is, to admit
it to be considered by the Jury among the circumstances
showing an actual payment. And if such payment be made
by one of several joint debtors, who is not otherwise dis-
charged from the obligation, it is evidence against them all.”
But as this rule is founded on the community of interest

 

1 See ante, Vol. 1, §§ 121, 122; Whitney v. Bigelow, 4 Pick. 110; Han-
cock v. Cook, 18 Pick. 30, 33; Rose v. Bryant, 2 Campb. 321; Conklin v.
Pearson, 1 Rich. 391. This subject is now regulated by statutes, in England,
and in several of the United States, by which the indorsement, if made by
the creditor or in his behalf, without the concurrence of the debtor, is of no
avail to take the case out of the statute. Stat. 9 Geo. 4, ch. 14; Rev. Stat.
Massachusetts, ch. 120, § 17; Rev. Stat. Maine, ch. 146, § 23. [A payment
was made by a debtor to a creditor to whom he owed several distinct debts,
without any direction as to its application, and the creditor immediately ap-
plied it to one of the debts which was barred by the Statute of Limitations,
and it was held that this did not take the debt out of the statute. Pond »v.
Williams, 1 Gray, 630. To have that effect, it must be made by the de-
fendant specifically on account of the debt thus barred. Ibid.; Tippets v.
Heane, 1 C. M. & R. 252, and 4 Tyrw. 772; Mills v. Fowkes, 5 Bing. N. C.
455, and 7 Scott’s Rep. 444; Burn v. Boulton, 2 C. B. 485. An indorse-
ment of payment on a promissory note by the creditor by the express as-
sent and request of the promisor, is sufficient proof of such payment to pre-
vent the operation of the Statute of Limitations. Sibley v. Phelps, 6 Cush.
172. See also Howe v. Saunders, 38 Maine, 350. There was an unwit-
nessed indorsement of a partial payment on an attested note, and it was
held, that an action could be brought on said note at any time within twenty
years of such indorsement. Lincoln Academy v. Newhall, 38 Maine, 179.
A payment by a wife, without the knowledge of her husband, of the interest
on a note given by her dum sola, will not avoid the statute. Neve v. Hol-
lands, 12 Eng. Law & Eq. R. 398.]

2 See ante, § 441; Vol. 1,§174. But the effect of such payment is now
restricted by statutes, in some of the United States, and in England, to the
patty paying. Stat. 9 Geo. 4, ch. 14; Rev. Stat. Massachusetis, ch. 120,
§§ 14, 18; Rev. Stat. Maine, ch. 146, §§ 20, 24. [Peirce v. Tobey, 5 Met.
168; Balcom v. Richards, 6 Cush. 360; Tappan v. Kimball, 10 Foster, 136;
Winchell v. Bowman, 21 Barb. 448; but the rule is otherwise where the
payment is on a note on which the makers are jointly and severally liable.
Shoemaker v. Benedict, 1 Kernan, (N. Y.) 176. See Coleman v. Fobes, 22
Penn. State R. 156.]
PART IV.] LIMITATIONS. 493

among the debtors, and’ the presumption, that no one of
them would make an admission against his own interest,
it results, that, where the party making the payment is no
longer responsible, as, for example, where it is received under
a dividend in bankruptcy, it raises no presumption against
the others.

§ 445. The existence of mutual accounts between the par-
ties, if there are items on both sides within the period of
limitation, is such evidence of a mutual acknowledgment of
indebitment, as to take the case out of the operation of the
statute? And if the defendant’s account contains an item

 

1 Brandram v. Wharton, 1 B. & Ald. 463; Ante, Vol. 1, § 174, u. (3).
And see Bibb v. Peyton, 11 S. & M. 275.

2 Cogswell v. Dolliver, 2 Mass. 217; Bull. N. P. 149; Chamberlain v.
Cuyler, 9 Wend. 126; Tucker v. Ives, 6 Cowen, 193; Fitch v. Hilleary,
1 Hill, 8. Car. Rep. 292. See, also, Rev. Stat. Massachusetts, ch. 120, § 5.
A similar effect has been attributed to continuity of service of a domestic,
until a short time previous to the suit. Viens v. Brickle, 1 Martin, 611. If ;
the items are all on one side, those within six years will not save the others
from the operation of the statute. Hadlock v. Losee, 1 Sandf. 220. [The
Massachusetts statute provides that in actions brought ‘to recover the bal-
ance due upon a mutual and open ‘account current, the cause of action shall
be deemed to have accrued at the time of the last item proved in such ac-
count.” This does not apply exclusively to such actions as are brought on
* accounts in which debits and credits are stated and a balance struck, but
extends also to cases in which the plaintiff seeks to recover the balance due
to him, though he declares only on the debit side of the account. And in
the latter case, if the"defendant does not file an account in set-off, nor prove
items on his side of the account by way of payment, but relies on the Stat-
ute of Limitations, the plaintiff may avoid the statute, by showing that there
was a mutual and open account current, and proving an item on either side,
within six years. Penniman v. Rotch, 3 Met. 216. Thus, where the plain-
tiff opened 4n accqunt with the defendant in 1830, and continued to make
charges until 1833, and brought an action on his account in 1838, and proved
on the trial that the defendant delivered to him an article on account in
18380, it was held that there was a mutual and open account current, and
that no part of the plaintiff’s charges were barred by the Statute of Lim-
itations. Ibid. The items of payments and receipts by two tenants in
common concerning their estate constitute “an open and mutual account
current” within the above statute. Dickinson v. Williams, 11 Cush. 258.]

VOL. IL : 42

q
494. LAW OF EVIDENCE. ‘ |PART Iv.

within that period, this has been held sufficient to save the
account of the plaintiff ;} but if the items in the defendant’s
account are all of an earlier date, though some of those in
the plaintiff’s account may be within the statute periods. tho.
statute will bar all the claim, except the’ last- mentioned
items? If the account has been stated between the parties,
the statute period commences at the time of stating it;*
but a mere cessation of dealings, or any act of the creditor
alone, or even the death of one of the partiés, is not, in
effect, a statement of the account.

§ 446. It may here be further observed, that, where the
cause of action arises ex delicto, as in trespass and trover ;
or is given by positive statute, irrespective of any promise
or neglect of duty by the party, as in the case of actions
against executors and administrators upon the contracts of
their testators or intestates; if the action is once barred by
lapse of time, no admission or acknowledgment, however
unequivocal, and positive, will take it out of the operation
of the statute$

§ 447. The Statute of Limitations of 21 Jac. 1, c. 16, which
has been copied nearly verbatim, in its principal features, in
most of the United States, contains an exception of “such
accounts as concern the trade of merchandise between mer-

 

1 Davis v. Smith, 4 Greenl. 337; Sickles v. Mather, 20 Wend. 72.

2 Gold v. Whitcomb, 14 Pick. 188; Bull. N. P. 149. In England, since
Ld. Tenterden’s Act, (9 Geo. 4, ch. 14,) the existence of items within six
years, in an open account, will not operate to take the previous portion of
the account out of the Statute of Limitations. Cottam v. Partridge, 4 M. &
G. 271.

3 Farrington v. Lee, 1 Mod. 269; 2 Mod. 311; Cranch v. Kirkman, Peake’s
Cas. 121, and note (1), by Day; Union Bank v. Knapp, 3 Pick. 96.

4 Trueman v. Hurst, 1 T. R. 40; Mandeville v. Wilson, 5 Cranch, 15;
Bass v. Bass, 5 Pick. 187; McLellan #. Crofton, 5 Greenl. 307.

5 Hurst v. Parker, 1 B. & Ald. 92; 2 Chitty, 249; Oothout v. Thompson,
20 Johns. 277; Brown v. Anderson, 13 Mass. 201; Thompson v. Brown, 16
Mass. 172; Dawes v, Shed, 15 Mass. 6; Ex parte Allen, Id. 58; Parkman
v. Osgood, 3 Greenl. 17.
PART IV.] LIMITATIONS. 495

chant and merchant, their factors or servants.” To bring a
case within this exception, it must be alleged in the replica-
tion and shown by proof, to conform to the statute in each
of those particulars ; every part of the exception being equally
material. The exception is not of actions, nor of special con-
tracts, nor of any other transactions between merchants, but
is restricted to that which is properly matter of account, or
consists of debits and credits properly arising in account. It
has therefore been held, that such claims as bills of exchange,”
or a contract to receive half the profits of a voyage in lieu of
freight,? were not merchants’ accounts, within this exception.
And as the exception was intended to be carved out of cases
for which an action of account lies, and as this action does
not lie where an account has already been stated between
the parties, it has been held, that a stated account is not
within the exception in the statute. But an account closed
by a mere cessation of dealings, we have just seen, is not
deemed an account stated. Whether any but current ac-
counts, that is, those which contain items within the statute
period, are within this exception, is a point upon which the
authorities, both in England and America, are not uniform.
On the one hand, it is maintained upon the language of the
statute, that if the accounts come within its terms, it is
sufficient to save them, though there have been no dealings
within the six years.5 On the other hand it has been held,

 

1 Spring v. Gray, 5 Mason, 525, per Story, J.; 6 Peters, 155, S. C.;
Cottam v. Partridge, 4 M. & G. 271; 4 Scott, N. R. 819. A mere open
account, without any agreement that the goods delivered on one side shall
go in payment of those delivered on the other, is not therefore an account
of merchandise, between merchants. Ibid. It has recently been held in
England, that the exception as to merchants’ accounts does not apply to an
action of indebitatus assumpsit, but only to the action of account, or perhaps
to an action on the case for not accounting. Inglis v. Haigh, 5 Jur. 704;
8 M. & W. 769.

2 Chievly v. Bond, 4 Mod. 105; Carth. 226 ; 1 Show. 341, S. C.

3 Spring v. Gray, 5 Mason, 505 ; 6 Peters, 155, 8. C.

4 Webber »v. Tivill, 2 Saund. 124, 127, note (6), (7), by Williams; 5
Mason, 526, 527. :

5 Mandeville v. Wilson, 5 Cranch, 15; ce v. Bass, 6 Pick. 362, confirmed
496 LAW OF EVIDENCE. [PART Iv.

that where all accounts have ceased for more than six years,
the statute is a bar; and that the exception applies only to
accounts running within the six years; in which last case,
the whole account is saved as to the antecedent items.
The account also, to be within the exception, must be such
as concern the trade of merchandise ; that is, such as con-
cern trafic in merchandise, where there is a buying and
selling of goods, and an account properly arising therefrom?
The existence of mutual debits and credits, there being no
agreement that the articles-delivered on one side shall go in
payment for those delivered on the other, has been held
4nsufficient to constitute the accounts, intended in this ex-
ception.? And it is necessary, moreover, that the parties to
the account be merchants, or persons who traffic in merchan-
dise, their factor, or servants.*

§ 448. The bar of this statute may also be avoided by
proof of fraud in the defendant, committed under such cir-
cumstances as to conceal from the plaintiff all knowledge of
the fraud, and thus prevent him from asserting his right,
until a period beyond the time limited by the statute. But
such fraudulent concealment can be shown only under a
proper replication of the fact. And it must be alleged and
proved, not only that the plaintiff did not know of the ex-
istence of the cause of action, but, that the defendant had

 

in 8 Pick. 187, 192; McLellan v. Crofton, 6 Greenl. 307. Such is now the
rule in England. See Robinson v. Alexander, 8 Bligh, N. 8. 352; Inglis
v. Haigh, 5 Jur. 704; 8 M. & W. 769, S. C.

1 Wilford v. Liddel, 2 Vez. 400; Coster v. Murray, 5 Johns. Ch. 522;
Spring v. Gray, 5 Mason, 505, 528; 6 Peters, 155. See Angell on Limita-
tions, ch. 14; Ramchander v. Hammond, 2 Johns. 200.

2 Spring v. Gray, 5 Mason, 529, per Story, J.; 6 Peters, 155. And see
Sturt v. Mellish, 2 Atk. 612; Bridges v. Mitchell, Bunb. 217; Gilb. Eq. R.
224.

3 Cottam v. Partridge, 4 M. & G. 271, 4 Scott, N. R. 819, 8. C.

4 5 Mason, 580, per Story, J., and authorities there cited; 5 Com. Dig.
52, tit, Mercuant, A.; 2 Salk. 445; Hancock v. Cook, 18 Pick. 32; Wil-
kinson on Limitations, p. 21-30; Angell on Limitations, ch. 15.
PART IV.] LIMITATIONS. 497

practised fraud, in order to prevent the plaintiff from obtain-
ing that knowledge at an earlier period.

 

1 Angell on Limitations, ch. 18; Bree v. Holbeck, 2 Doug. 654, confirmed
in Brown v. Howard, 2 B. & B. 73, 75; 4 J. B. Moore, 508, S. C.; and in
Clark v. Hougham, 2 B. & C. 149, 153; Short v. McCarthy, 3 B. & Ald.
626 ; Granger v. George, 5 B. & C. 149. And see Macdonald v. Macdonald,
1 Bligh, 315. See also Sherwood v. Sutton, 5 Mason, 148, where all the
authorities are reviewed by Story, J. First Mass. Turnp. Co. v. Field, 3
Mass. 201; Homer v. Fish, 1 Pick. 485; Welles v. Fish, 3 Pick. 74; Farn-
ham v. Brooks, 9 Pick. 212; Jones y. Conoway, 4 Yeates, 109; Bishop v.
Little, 3 Green]. 405; Walley v. Walley, 3 Bligh, 12. In New York,
fraudulent concealment of the cause of action will not prevent the opera-
tion of the statute. Troup v. Smith, 20 Johns. 40; Allen v. Mille, 17 Wend.
202. [See also Moore v. Greene, 2 Curtis, C. C. 202; Carr v. Hilton, 1
Ib. 390; Rouse v. Southard, 39 Maine, 404; Douglas v. Elkins, 8 Foster,
(N. H.) 26; Livermore v. Johnson, 27 Miss. 284.]

42 *
498 LAW OF EVIDENCE. [PART IV.

MALICIOUS PROSECUTION.

§ 449. To maintain an action for this injury, the plaintiff
must prove — (1.) That he has been prosecuted by the de-
fendant, either criminally, or in a civil suit; and that the
prosecution is at an end; (2.) That it was instituted mali-
ciously, and without probable cause ; (3.) That he has there-
by sustained damage. It is not necessary that the whole
proceedings be utterly groundless; for if groundless charges
are maliciously and without probable cause coupled with
others, which are well founded, they are not on that account
the less injurious, and therefore constitute a valid cause of
action! Nor is the form of the prosecution material; the
gravamen being, that.the plaintiff has improperly been made
the subject of legal process to his damage. If, therefore, a
commission of bankruptcy has been sued out against him,
though it was afterwards superseded ;? or his house has been
searched under a warrant for smuggled or stolen goods ;? or,
if a'‘commission of lunacy has been taken out against him ;+*
or, if special damage has resulted from a false claim of goods ;°

 

1 Reed v. Taylor, 4 Taunt. 516; Wood v. Buckley, 4 Co. 14; Pierce v.
Thompson, 6 Pick. 193; Stone v. Crocker, 24 Pick. 81. [A declaration in
an action against two for maliciously conspiring to have the plaintiff indicted
for perjury, need not set out any agreement to do any act in itself unlawful,
or any act, lawful in itself, by unlawful means. Parker v. Huntington, 2
Gray, 125; Page v. Cushing, 38 Maine, 523. See also Churchill x. Siggers,
26 Eng. Law & Eq. 200. The action cannot be sustained without the alle-
gation and proof of legal damage to the plaintiff. Cotterell v. Jones, 7 Eng.
Law & Eq. 475.]

2 Brown v. Chapman, 3 Burr. 1418 ; Chapman ». Pickersgill, 2 Wils. 145;
[Farlie v. Danks, 30 Eng. Law & Eq. 115.]

3 Boot v. Cooper, 1 T. R. 535.

4 Turner v. Turner, Gow. 20.

5 Green v. Button, 2 C. M, & R. 707; 1 Tyr. & Gr. 118.
PART IV.| MALICIOUS PROSECUTION. 499

or, if goods have been extorted from him by duress of im-
prisonment, or abuse of legal process ;1 or, if he has been
arrested and held to bail for a debt not due, or for more than
was due ;? and it was done maliciously, and without probable
cause; he may have this remedy for the injury. The action
moreover, is to be brought against the party who actually
caused the injury, and not against one who was only a nom-
inal party. And therefore, if one commence.a suit in the
name of another, without his authority, and attach the goods
.of the defendant, with malicious intent to vex and harass
him, this action lies, though the suit was for a just cause of
action® But where the suit was commenced by the attor-
ney of the party, in the course of his general employment,
though without the knowledge or assent of his client, it
seems that the party himself is liable+ The attorney is not
liable, unless he acted wholly without authority, or conspired
with his client to oppress and harass the plaintif£® Nor is it
material, that the plaintiff was prosecuted by an insufficient
process, or before a Court not having jurisdiction of the
matter; for a bad indictment may serve all the purposes of
malice, as well as a good one; and the injury to the party is
not on that account less, than if the process had been regu-
lar, and before a competent tribunal.®

 

1 Grainger v. Hill, 4 Bing. N. C. 212; 3 Scott, Se; Plummer: Dennett,
6 Greenl. 421.

2 Savage v. Brewer, 15 Pick. 453; Wentworth v. Bullen, 9 B. &
840; Ray v. Law, 1 Peters, C. C. Rep. 210; Sommer v. Wilt, 4 5. -&
19.

8 Pierce v. Thompson, 6 Pick. 193. [Whether an action of malicious
prosecution can be maintained against a corporation, quere. Stevens v.
Midland, &c. Railway Co. 26 Eng. Law & Eq. 410.]

4 Jones v. Nichols, 3 M. & P. 12.

5 Bicknell v. Dorion, 16 Pick. 468.

6 Chambers v. Robinson, 1 Stra. 691; Anon. 2 Mod. 306 ; Saville v. Rob-
erts,1 Ld. Raym. 374, 381; Jones v. Givin, Gilb. Cas. 188, 201-206, 221;
Pippet v. Hearn, 5 B. & Ald. 634, [Where the magistrate has no juriedio-
tion of the offence of which the plaintiff was accused, the proceedings before
him are of no legal force or validity, and they are therefore insufficient to.
sustain an action for malicious prosecution. Bixby v. Brundige, 2 Gray,

C.
R.
500 LAW OF EVIDENCE. [PART Iv.

§ 450. (1.) The fact of the prosecution will be proved by
duly authenticated copies of the record and proceedings?
Some evidence must also be given, that the defendant was
the prosecutor. To this end, a copy of the indictment, with
the defendant’s name indorsed as a witness, is admissible as
evidence, that he was sworn to the bill; but this fact may
also be proved by one of the grand-jury, or other competent
testimony.? It may also be shown, that the defendant em-
ployed counsel or other persons, to assist in the prosecution ;
or, that he gave instructions, paid expenses, procured wit-
nesses, or was Otherwise active in forwarding it.

§ 451. Where the suit is for causing the plaintiff to be
maliciously arrested and detained until he gave bail, it is
sufficient for him to show a detention, without proving that
he put in bail; for the detention is the principal gravamen ;
and is in itself primé facie evidence of an arrest, though
the mere giving of bail is not.* But if the declaration is
framed upon the fact of maliciously causing the plaintiff to
be a to bail, no evidence of a previous arrest is neces-
sary

§ 452. ]t must also appear, that the prosecution is at an

 

129. But see Morris v. Scott, 21 Wend. 281; Stone v. Stevens, 12 Conn.
219; Hays v. Younglove, 7 B. Mon. 545.]

1 For the law respecting variance between the allegation and the proof,
see ante, Vol. 1, §§ 63, 64,65. If the prosecution was in a foreign country,
a copy of the record is not indispensably necessary, but other evidence of
the facts may be received. Young v. Gregory, 3 Call, 446. [To sustain an
action for malicious prosecution the plaintiff must prove by the record, or a
copy thereof, the proceedings in the prosecution against him and his acquit-
tal. Sayles v. Briggs, 4 Met. 421.]

2 Rex v. Commerell, 4 M. & §. 203; Rex v. Smith, 1 Burr. 54; Rex v.
Kettleworth, 5 T. R. 33; Johnson v. Browning, 6 Mod. 216. See, as to the
competency of grand jurors, ante, Vol. 1, § 252. :

3 Bristow v. Haywood, 1 Stark. 48; 4 Campb. 213, S. C.; Whalley v
Pepper, 7 C. & P. 506.

4 Berry v. Adamson, 6 B. & C. 528; 2 C. & P. 508, 8. C.

5 Tbid.; Small v. Gray, 2 C. & P. 605.
PART Iv.] MALICIOUS PROSECUTION. 501

end. If it was a civil suit, its termination may be shown
by proof of a rule to discontinue on payment of costs, and
that the costs were taxed and paid; without proof of judg-
ment or production of the record ;2 but an order to stay pro-
ceedings is not alone sufficient.® If it was terminated by a
judgment, this is proved by the record. But where the
action is for abusing the process of law in order illegally to
compel a party io do a collateral thing, such as to give up
his property, it is not necessary to aver and prove, that the
process improperly employed is at an end, nor that it was
sued out without reasonable or probable cause.* So, if it
was a criminal prosecution, the like evidence must be given
of its termination. And it must appear, that the plaintiff
was acquitted of the charge; it is not enough, that the
indictment was ended by the entry of a nolle prosequi;
though if the party pleaded not guilty, and the Attorney-
General confessed the plea, this would suffice. So, if he
was acquitted because of a defect in the indictment, it is
sufficient.6 If the party has been arrested and bound over,
on a criminal charge, but the’ grand-jury did not find a bill
against him, proof of this fact is not enough, without also
showing, that he has‘ been regularly discharged by order of
Court; for the Court may have power to detain him, for

 

1 Arundell v. Tregono, Yelv. 116; Hunter v. French, Willes, 517; Lewis
v. Farrell, 1 Stra. 114; Shock v. McChesney, 2 Yeates, 473, 475.

2 Bristow v. Haywood, 4 Campb. 213; French v. Kirk, 1 Esp. 80; Brook
v. Carpenter, 3 Bing. 297; Watkins v. Lee, 6 M. & W. 270.

3 Wilkinson v. Howell, 1 M. & Malk. 495. Nor is an order to supersede
the commissioner sufficient, in a case of bankruptcy. Poynton v, Forster, 3
Campb. 60. ;

4 Grainger v. Hill, 4 Bing. N. C. 212; 3 Scott, 561, S.C.

5 Goddard v. Smith, 1 Salk. 21; 6 Mod. 261, S. C.; Smith v. Shackelford,
1 Nott & M’C. 36; Fisher v. Bristow, 1 Doug. 215; Morgan v. Hughes, 2 T.
R. 225; [Bacon v. Towne, 4 Cush. 217; Parker v. Farley, 10 Cush. 279;
and where the magistrate has authority only to bind over or discharge a per-
son accused, and he discharges him, the discharge is equivalent to an acquit-
tal, and will avail as evidence to support an allegation of acquittal in a dec-
laration for malicious prosecution. Sayles v. Briggs, 4 Met. 421.]

6 Wicks v. Fentham, 4 T. R. 247.
502 LAW OF EVIDENCE. [PART IV.

good cause, until a further charge is preferred for the same
offence. But, in other cases, the return of ignoramus on a
bill, by the grand-jury, has been deemed sufficient?

§ 453. (2.) The plaintiff must also show, that the prose-
cution was instituted maliciously, and without probable
cause; and both these must concur? If it were malicious
and unfounded, but there was probable cause for the prose-
cution, this action cannot be maintained. The question of
malice is for the Jury; and to sustain this averment the
charge must be shown to have been wilfully false® In a
legal sense, any unlawful act, done wilfully and purposely
to the injury of another, is, as against that person, malicious.®

 

1 Thomas v. De Graffenreid, 2 Nott & M’C. 143. And see Weinberger
v. Shelly, 6 W. & S. 336, :

2 Morgan v. Hughes, 2 T. R. 225; Anon. Sty. 10, 872; Atwood v, Mon-
ger, Sty. 378; Jones v. Givin, Gilb. Cas. 185, 220.

3 Farmer v. Darling, 4 Burr. 1971; Stone v. Crocker, 24 Pick. 81, 83 ;
Bell v. Graham, 1 Nott & M’C. 278; Hall v. Suydam, 6 Barb. S. C. R. 83.
Whether, therefore, this action lies against a corporation, quere, and see
McLellan v. Bank of Cumberland, 9 Law Rep. 82.

4 Arbuckle v. Taylor, 3 Dowl. 160; Turner v. Turner, Gow, 20. ’

5 Cohen v. Morgan, 6 D. & R. 8; Johnstone v. Sutton, 1 T. R. 540; Jack-
son v. Burleigh, 8 Esp. 34; Austin v. Debnam, 3 B. & C. 139; Burley v.
Bethune, 5 Taunt. 580; Grant v. Duel, 3 Rob. Louis. R. 17.

6 Commonwealth v. Snelling, 15 Pick. 321, 330; Stokley v. Harnidge, 8
C. & P.1r. The law, as to malice, was clearly illustrated by Parke, J., in
Mitchell v. Jenkins, 7 B. & Ad. 588, 594, in the following terms :— “I have
always understood, since the case of Johnstone v. Sutton, 1 T. R. 510, which
was decided long before I was in the profession, that no point of law was
more clearly settled than that, in every action for a malicious proseotiien
or arrest, the plaintiff must prove what is averred in the declaration, viz.
that the prosecution or arrest was malicious, and without reasonable or fib
able cause; if there be reasonable or probable cause, no malice, however
distinctly ‘proved, will make the defendant liable; but when there is no
reasonable or probable cause, it is for the Jury to infer malice from the facts
proved. That is a question in all cases for their consideration, and it having
in this instance been withdrawn from them, it is impossible to say, whether
they might or might not have come to the conclusion, that the arrest was
malicious. It was for them to decide it, and not for the Judge. I can con-
ceive a case, where there are mutual accounts between parties, and where
PART IV.] MALICIOUS PROSECUTION. 508

And if the immediate act be done unwillingly and by coer-
cion, as, where the party preferred an indictment because he
was bound over so to do, yet, if he was himself the cause
of the coercion, as, by originally making a malicious charge
before the magistrate, this will sustain the averment of
malice.1 The proof of malice need not be direct; it may be
be inferred from circumstances; but it is not to be inferred
from the mere fact of the. plaintiff’s acquittal for want
of the prosecutor’s appearance when called;? nor, in the
case of civil suit, from the parties suing out the writ, or
neglecting to countermand it, after payment of the debt.?
But it may be inferred by the Jury, from the want of prob-
able cause. Malice may also be proved by evidence of the

 

an arrest for the whole sum claimed by the plaintiff would not be malicious;
for example, the plaintiff might know that the set-off was open to dispute,
and that there was reasonable ground for disputing it. In that case, though
it might afterwards appear, that the set-off did exist, the arrest would not
be malicious. The term ‘ malice,’ in this form of action, is not to be con-
sidered in the sense of spite or hatred against an individual, but of malus
animus, and as denoting that the party is actuated by improper and indirect
motives. That would not be the case where, there being an unsettled ac-
count, with items on both sides, one of the parties believing bond fide that
a certain sum was due to him, arrested his debtor for that sum, though it
afterwards appeared that a less sum was due; nor where a party made such
an arrest, acting bond fide under a wrong notion of the law, and pursuant
to legal advice.” And see Haddrick v. Heslop, 12 Ad. & El. 267, N. S.;
[Bacon v. Towne, 4 Cush. 217; Parker v. Farley, 10 Cush. 281; Parker v.
Huntington, 2 Gray, 125; McGurn v. Brackett, 33 Maine, 331; Beach v.
Wheeler, 24 Penn. State R. 212; Lang v. Rodgers, 19 Ala. 321; Stevens
v. The Midland Co. Railway Co. 26 Eng. Law & Eq. R. 410; Wheeler v.
Nesbitt, 24 How. 545.

1 Dubois v. Keates, 4 Jur. 148; 3 P. & D. 306, 8. C.

2 Purcell v. Macnamara, 9 East, 361; 1 Campb. 199,8.C.; Sykes v. Dun-
bar, Id. 202, ue

3 Gibson v. Chaters, 2 B. & P.129; Scheibel vr. Fairbain, 1 B. & P. 388 ;
Page v. Wiple, 3 East, 314. Nor from the action being non-prossed, or dis-
continued; Sinclair v. Eldred, 4 Taunt. 7; unless coupled with other circum-
stances. Bristow v. Heywood, 1 Stark. 48; Nicholson v. Coghill, 4 B & C.
21; 6 D.& R. 12.

4 Murray v. Long, 1 Wend. 440; Crozer »v. Pilling, 4 B. & C. 26; Mitchell
v. Jenkins, 5 B. & Ad. 588; 1 Nev. & M. 301; Turner v. Turner, Gow, 20;
Merriam v. Mitchell, 1 Shepl. 439; Hall v. Suydam, 6 Barb. 8. C. R. 83;
504 LAW OF EVIDENCE. [PART Iv.

defendant’s conduct and declarations, and his forwardness
and activity in exposing the plaintiff, by a publication of
the proceedings against him, or by any other publications
by the defendant, on the subject of the charge.t And if the
prosecution was against the plaintiff jointly with another,
evidence of the defendant’s malice against the other party
is admissible, as tending to show his bad motives against
both?

§ 454. The want of probable cause is a material averment,
and, though negative in its form and character, it must be
proved by the plaintiff, by some affirmative evidence ;* un-
less the defendant dispenses with this proof, by pleading
singly the truth of the facts involved in the prosecution.* It
is independent of malicious motive, and cannot be inferred,
as a necessary consequence, from any degree of malice which
may be shown. Probable cause for a criminal prosecution
is understood to be such conduct on the part of the accused
as may induce the Court to infer that the prosecution was
undertaken from public motives.6 In the case of a private

 

Crassa ignorantia has been held to amount to malice. Brookes v. Warwick,
2 Stark. 389.

1 Chambers v. Robinson, 1 Stra. 691.

2 Caddy v. Barlow, 1 M. & Ry. 275.

3 Ante, Vol. 1. § 78; Purcell v. Macnamara, 1 Campb. 199; 9 East, 361 ;
McCormick v. Sisson, 7 Cowen, 715; Murray v. Long, 1 Wend. 140; Gorton
v. De Angelis, 6 Wend. 418; Incledon v. Barry, 1 Campb. 203, n.; Taylor
v. Williams, 2 B. & Ad. 845; 6 Bing. 183. Where the declaration alleged
a prosecution of the plaintiff for perjury in a certain cause, and the indict-
ment was set forth containing two several assignments of perjury ; it was
held that the declaration was supported by proof of malice and the want of ,
probable cause as to one only of the assignments. Ellis ». Abrahams, 10 Jur.
593.

4 Morris v. Corson, 7 Cowen, 281. See also Sterling v. Adams, 3 Day,
411.

5 1 Camp. 206, n. (a); Sykes v. Dunbar, Id. 502, n. (a); Horn v. Boon,
3 Strobh. 307; Hall v. Suydam, 6 Barb. 8. C. R. 83; [Bacon v. Towne,
4 Cush. 217; Parker v. Farley, 10 Cush. 281; Heslop v. Chapman, 22 Eng.
Law & Eq. R. 296; Kidder v. Parkhurst, 3 Allen, 393.]

6 Ulmer v. Leland, 1 Greenl. 135. Or, such a suspicion as would induce
PART Iv.] MALICIOUS PROSECUTION. 505

suit, it may consist of such facts and circumstances, as lead
to the inference, that the party was actuated by an honest
and reasonable conviction of the justice of the suit. And in
either case, it must appear that the facts, or so much of them
as was sufficient to induce the belief, were communicated to
the defendant before he commenced the prosecution or suit.
In revenue and admiralty cases, probable cause for a seizure
or a capture is made out, when the officer shows such rea-
sons for the act as were sufficient to warrant a prudent, intel-
ligent, and cautious man in drawing the same conclusion?
Thus, where the commander of a national vessel was prose-
cuted for the capture of a vessel on the coast of Africa, on
suspicion of her being a slaver, proof that he “acted with
intelligent and honorable discretion” in arresting and send-
ing her to this country for adjudication, was held sufficient
evidence of probable cause. The question of probable cause
is composed of law and fact; it being the province of the
Jury to determine, whether the circumstances alleged are
true or not; and of the Court to determine, whether they

 

a reasonable man to commence a prosecution. Cabaness v. Martin, 3 Dev.
454. Or, areasonable ground of suspicion, supported by circumstances sufli-
cient to warrant a cautious man in believing that the party is guilty of the
offence. Munns v. Dupont, 3 Wash. C. C. R. 31; Foshay v. Ferguson, 2
Denio, 617. [Probable cause is such a state of facts in the mind of the
prosecutor, as would lead a man of ordinary caution and prudence to believe,
or entertain an honest and strong suspicion, that the person arrested is guilty.
By Shaw, C. J., in Bacon v. Towne, 4 Cush. 238; McGurn v. Brackett, 33
Maine, 381. Where the malicious prosecution of the plaintiff by the defend-
ant was on the charge of maliciously breaking down and leaving open a fence
between the land of the plaintiff and of the defendant, the dividing line
between which had been settled by arbitration, in an action to recover dam-
ages for such malicious prosecution, evidence of prior wrongful removals of
the fence by the plaintiff, before the submission to arbitration, cannot be
shown by the defendant to prove probable cause for the prosecution. Tillot- .
son v. Warner, 3 Gray, 574.]

1 Delegal v. Highley, 3 Bing. N. C. 950; Seibert v. Price, 5 Watts & Serg.
438 ; Foshay v. Ferguson, 2 Denio, 617; [Bacon v. Towne, 4 Cush. 238.]

2 Shattuck v. Maley, 1 Wash. C. C. R. 247, 249.

3 Lovett v. Bispham, 2 Am. Law Journ. 97, 108, N. S. ,

VOL. II. 43
506 LAW OF EVIDENCE. [PART IV.

amount to probable cause! Regularly, the facts material to
this question are first to be found by the Jury, and the Judge
is then to decide, as a point of law, whether the facts, so
‘found, establish probable cause or not.2 But if the matter
of fact and matter of law, of which the probable cause con-
sists, are intimately blended together, the Judge will be war-
ranted in leaving the question to the Jury.2 Thus, where the
question was, whether the defendant believed that there was
reasonable and probable cause for preferring the indictment,
and the Judge left this question to the Jury, who found that
the defendant preferred the indictment from improper mo-
tives, and the Judge thereupon held that there was evidence
of malice; it was adjudged that this direction was right.*
If the Judge, upon the plaintiff’s evidence, is of opinion that
there was not probable cause for the prosecution, but upon
proof of an additional fact by the defendant, by a witness
who is not impeached or contradicted, he is of opinion that
there was probable cause, he is not bound to submit the evi-
dence to the Jury, but may well nonsuit the plaintiff’ But
where the prosecution was founded on a charge of menaces
of the prosecutoy’s life, it is not for the Judge alone to deter-
mine whether the menaces justified the charge, but it is for

1 Johnstone v. Sutton, 1 T. R. 545; 1 Bro. P. C. 76, 8. C.; Blachford v.
Dod, 2 B. & Ad. 184; Ulmer v. Leland, 1 Greenl. 135; Stone v. Crocker,
24 Pick. 81; Panton v. Williams, 1 G. & D. 504; 2 Ad. & El. 169, N.S.;
Watson v. Whitmore, 8 Jur. 964; 14 Law Journ. 41, N. 8.; Hall v. Suy-
dam, supra ; Horn v. Boon, supra ; Newell v. Downs, 8 Blackf. 528; Sims
v. McLendon, 3 Strobh. 557; [Taylor v. Godfrey, 36 Maine, 525; Bulkley
v. Smith, 2 Duer, (N. Y.) 261; Bulkley v. Keteltas, 2 Selden, (N. Y.) 384;
Carpenter v. Shelden, 5 Sandf. 77; Jacks v. Stimpson, 13 Ill. 701; Ash v.
Marlow, 20 Ohio, 119; Kidder v. Parkhurst, 3 Allen, 393,]

2 Turner v. Ambler, 10 Ad. & El. 252, N. S.

3 McDonald v. Rooke, 2 Bing. N. C. 217; 2 Scott, 359, 8. C.; Ante, Vol.
1,§ 49. And see Taylor v. Willans, 2 B. & Ad. 845.

4 Wren v. Heslop, 12 Jur. 600.

5 Davis v. Hardy, 6 B. & C. 225. In considering whether there was
probable cause for an arrest, the Judge will not regard any expressions of
general malice on the part of the defendant. Whalley v. Pepper, 7 C. &
P. 506.
PART IV.] MALICIOUS PROSECUTION. 507

the Jury first to determine, whether the defendant believed
them ; for his disbelief is material to the question of fact, as
it goes directly to the motive of the prosecution.!

§ 455. What will or will not amount to probable cause,
will depend on the circumstances of each particular case. If
express malice is proved, and the cause of the former pro-
ceedings was peculiarly within the knowledge of the defend-
ant, slight evidence on the part of the plaintiff of the absence
of probable cause will be deemed sufficient.2, The discharge
of the plaintiff, by the examining magistrate, is primé facie
evidence of the want of probable cause, sufficient to throw
upon the defendant the burden of proving the contrary.
But in ordinary cases, it will not be sufficient to show, that
the plaintiff was acquitted of an indictment by reason of the
non-appearance of the defendant, who was the prosecutor ; 4
nor, that the defendant, after instituting a prosecution, did not
proceed with it;° nor, that the grand-jury returned the bill
“not found.”® Nor will the mere possession of goods, sup-
posed to have been stolen, afford sufficient probable cause
for prosecuting the possessor, if no inquiry was made of
him, nor any opportunity given him to explain, how his
possession was acquired. And, on the other hand, the fact
that the party’s goods have not been stolen, but were acci-

dentally mislaid, will not alone establish the want of probable

 

1 Venafra v. Johnson, 10 Bing. 301; 6 C. & P. 50, S. C.; Broad v. Ham,
5 Bing. N. C. 722; Foshay v. Ferguson, 2 Denio, 617. And see Haddrick
v. Heslop, 12 Ad. & El. 267, N.S.

2 Incledon v. Berry, 1 Campb. 203, n. (a); Bull. N. P. 14; Nicholson ».
‘Coghill, 4 B. & C. 21.

3 Secor v. Babcock, 2 Johns. 203; Johnston v. Marlin, 2 Murphy, 248;
Bostick v. Rutherford, 4 Hawks, 83. But see Stone v. Crocker, 24 Pick.
81,88; Scott v. Simpson, 1 Sandf. S. C. R. 601.

4 Purcell v. Macnamara, 1 Campb. 199; 9 East, 361, 8. C.

5 Wallis v. Alpine, 1 Campb. 204, u. And see Roberts v. Bayles, 1 Sandf.
8. C. R. 47.

6 Byne v. Moore, 5 Taunt. 187; Freeman v. Arkell, 2 B. & C. 494; 3
D. & R. 669, 8. C. But the prosecutor may still be liable for slander. Bull.

N. P. 13.
508 LAW OF EVIDENCE. [PART IV.

cause for prosecuting one as having stolen them.!_ Probable
cause does not depend on the actual state of the case, in
point of fact, but upon the honest and reasonable belief of
the party prosecuting? It must appear, that the defendant
knew of the existence of those facts which tended to show
reasonable and probable cause, because, without knowing
them, he could not act upon them; and also that he be-
lieved, that the facts amounted to the offence which he
charged, because otherwise, he will have made them the
pretext for prosecution, without even entertaining the opin-
ion that he had a right to prosecute. And whether he did
so believe, or not, is rather a fact to be found by the Jury,
than an inference of law to be made by the Judge, to whom
only the legal effect of the facts is properly referred? Yet if
this belief, however confident and strong, was induced by the
prosecutor’s own error, mistake, or negligence, without any

 

1 Swain v. Stafford, 4 Iredell, 392, 398.

2 James v. Phelps, 11 Ad. & El. 489; Delegal v. Highley, 3 Bing. N. C.
950; Seibert v. Price, 5 Watts & Serg. 438; Swain v. Stafford, 4 Iredell,
889; Plummer v. Gheen, 3 Hawks, 66. Though the indictment were for
an assault and battery, yet if there were no excess of force beyond what
was necessary for the occasion, and the defendant preferred the indictment
with a consciousness that he was in the wrong, the prosecution was without
probable cause. Hinton v. Heather, 14 M. & W. 131. [To show probable
cause and rebut the allegation of malice, the defendant may prove that a
certain person communicated to another, with a request that the latter would
make it known to the defendant, the fact that the former saw the plaintiff
do the criminal act of which he was accused, and that this information was
communicated to the defendant, before the complaint against the plaintiff
was made. Bacon v. Towne, 4 Cush. 217. So he may prove for this pur-
pose by the magistrate before whom the prosecution was instituted, what
the testimony before him was on the part of the government; and it is not
necessary, for this purpose, that the witnesses by whom thé testimony was
given, or their depositions, should be produced; and if produced, and the
witnesses are not able to recollect what their testimony was, it may never-
theless be proved by the magistrate. Ibid. Goodrich v. Warner, 21 Conn.
432; Gardner v. Randolph, 18 Ala. 685. But see Larrence v. Lanning,
2 Carter, (Ind.) 256.]

3 Turner v. Ambler, 11 Jur. 346, per Ld. Denman, C. J.
PART Iv.] MALICIOUS PROSECUTION. . 509

occasion for suspicion given ,by the party prosecuted, it will
not amount to probable cause.!

§ 456. (3.) As to the damages. Whether the plaintiff
has been prosecuted by indictment, or by civil proceedings,
the principle of awarding damages is the same, and he is
entitled to indemnity for the peril occasioned to him in
regard to his life or liberty, for the injury to his reputation,
his feelings, and his person, and for all the expenses to which
he necessarily has been subjected2 And if no evidence is
‘given of particular damages, yet the Jury are not therefore
obliged to find nominal damages only.2 Where the prose-
cution was by suit at Common Law, no damages will be
given for the ordinary taxable costs, if they were recovered
in that action; but if there was a malicious arrest, or the
suit was malicious, and without probable cause, the extraor-
dinary costs, as between attorney and client, as well as all
other expenses necessarily incurred in defence, are to be,
taken into the estimate of damages. Whatever was admis-
sible in evidence to defeat the original malicious suit, is ad-
missible for the plaintiff in this action, to maintain his right
to recover for the inj ury sustained.®

§ 457..The defence of this action usually consists in dis-
proving the charge of malice, or in showing the existence of
probable cause for the prosecution. And in proof of proba-
ble cause for a criminal prosecution, it seems that the testi-
mony of the defendant himself, to facts peculiarly within

 

1 Merriam v. Mitchell, 1 Shepl. 439.
2 Bull. N. P. 13,14; Thompson v. Mussey, 3 Greenl. 305.
3 Tripp v. Thomas, 3 B. & C. 427.

4 Sandback v. Thomas, 1 Stark. 806; Gould v. Barratt, 2 M. & Rob. 171.
And see Doe v. Davis, 1 Esp. 358; Nowell v. Roake, 7 B. & C.404. In
Sinclair v. Eldred, 4 Taunt. 7, it was decided that the extra costs of defence
could not be recovered, unless there had been a malicious arrest of the per-
son ; and Best, C. J., in Webber v. Nicholas, Ry. & M. 417, reluctantly felt
himself bound by this decision; but said he thought Ld. Ellenborough’s
opinion, in Sandback »v. Tamas: the correct one,

5 Hadden v. Mills, 4 C. & P. 486.
43%
i

510 , LAW OF EVIDENCE. [PART Iv.

his own knowledge, given upon the trial, diverso intuitu, is
admissible in the action against him for causing that prose-
cution.! But the testimony of other witnesses, given on that
occasion, cannot be proved but by the witnesses themselves,
or, if they are dead, by the usual secondary evidence.? Prob-

able cause may also be proved by evidence, that the acquittal

_ of the plaintiff, in the suit or prosecution against him, was the

result of deliberation by the Jury, the testimony having been
sufficient to induce them to pause ;? or, that he had been
convicted of the offence before a Justice of the Peace, who
had jurisdiction of the case, though he was afterwards ac-
quitted on an appeal from the sentence.* If the original suit
was for the recovery of money claimed as a debt, and the
defendant, submitting to the demand, obtains a suppression
of the process by the payment of part of the sum demanded,
this, under ordinary circumstances, is a conclusive admission
of the existence of a probable cause for the suit.

 

1 See anie, Vol. 1, § 8352; Bull. N. P. 14. Or, the evidence of his wife.
Jobnson v. Browning, 6 Mod. 216. And see Burlingame v. Burlingame, 8
Cowen, 141; Jackson v. Bull, 2 M. & Rob. 176; Scott v. Wilson, Cooke,
815 ; Moodey v. Pender, 2 Hayw. 29; Guerrant v. Tinder, Gilmer, 36 ; Watt
v. Greenlee, 2 Murphy, 246.

2 Burt v. Place, 4 Wend. 591.

3 Smith v. Macdonald, 3 Esp. 7; Grant v. Duel, 3 Rob. Louis. R. 17.

4 Whitney v. Peckham, 15 Mass. 243; Griffis v. Sellers, 2 Dev. & Bat.
492; Commonwealth v. Davis, 11 Pick. 433, 438. Such conviction is con-
clusive evidence of probable cause, unless it was obtained chiefly or wholly
by the false testimony of the defendant. Witham v. Gowan, 2 Shepl. 362;
Payson v. Caswell, 9 Shepl. 212; [Ulmer v. Leland, 1 Greenl. R. 135; Rey-
nolds v. Kennedy, 1 Wils. 232; Goodrich v. Warner, 21 Conn. 432. And
if there was an acquittal before the magistrate, if he had no jurisdiction of
the offence, the action for malicious prosecution cannot be maintained.
Bixby v. Brundige, 2 Gray, 129; Bacon v. Towne, 4 Cush. 217. But see
Morris v. Scott, 21 Wend. 281; Stone v. Stevens, 12 Conn. 219; Hays v.
Younglove, 7 B. Mon. 545.

A verdict of guilty in a criminal prosecution, founded upon correct legal
instructions, is conclusive evidence of probable cause in a subsequent action
for malicious prosecution, although such verdict was set aside for newly dis-

- covered evidence, and a nolle prosequi finally entered. Parker v. Farley,

10 Cush. 279; Parker v. Huntington, 2 Gray, 125.]
5 Savage v. Brewer, 16 Pick. 453.
PART IV.] MALICIOUS PROSECUTION. 511

§ 458. Ordinarily, the character of the plaintiff is not in
issue in this action. But in one case where the charge
against him was for larceny, the defendant was allowed in
addition to the circumstances of suspicion, which were suffi-
cient to justify his taking the plaintiff into custody, to prove
that he was a man of notoriously bad character! Circum-
stances of suspicion are also admissible in evidence, in miti-
gation of damages.”

§ 459. How far the advice of cownsel may go to establish
the fact of probable cause for the prosecution, is @ point upon
which there has been some diversity of opinion. It is agreed,
that if a full and correct statement of the case has been sub-
mitted to legal counsel, the advice thereupon given ‘furnishes
sufficient probable cause for proceeding accordingly. But
whether the party’s omission to state to his counsel a fact,
well known, but honestly supposed not to be material, or his
omission, through ignorance, to state a material fact which
actually existed, will render the advice of counsel unavail-
able to him as evidence of probable cause, does not appear
to have been expressly decided. The rule, however, as recog-

 

i Rodrigues v. Tadmire, 2 Esp. 721. And see 12 Rep. 92; 2 Inst. 51,
52; 2 Phil. Evid. 258. In Newsam v. Carr, 2 Stark. 69, upon the question
being put to one of the witnesses, whether he had not searched the plaintiff’s
house on a former occasion, and whether he was not a person of suspicious
character, it was objected to; but it is said, that “ Wood, B., overruled the
objection ;” though the observations, attributed to him by the reporter, seem
to show that in his opinion the question was improper. [Bacon v. Towne,
4 Cush. 240; Martin v. Hardesty, 27 Ala. 458.]

2 Hitchcock v. North, 5 Rob. Louis. R. 328. [It is not competent for the
defendant, for the purpose of proving probable cause, to show that the ac-
cused (i. e. the plaintiff in the action for malicious prosecution) was gener-
ally suspected, or generally believed guilty of the crime charged. paeal
v. Brackett, 33 Maine, 580.]

3 Hewlett v. Cruchley, 5 Taunt. 277. And see Snow v. Allen, 1 Stark.
502; Ravenga v. McIntosh, 2 B. & C. 693; [Walter v. Sample, 25 Penn.
State R. 275; Leaird v. Davis, 17 Ala. 27.]

4In Thompson v. Mussey, 8 Greenl. 305, 310, the defendant had prose-
cuted the plaintiff for misconduct as an assessor, in not giving public notice,
in the warrant calling a town meeting, of the time and place of the meeting
512 LAW OF EVIDENCE. [PART Iv.

nized in a recent American case, seems broad enough to
protect any party, acting in good faith, and without gross
negligence. For it is laid down, that if the party “did not
withhold any information from his counsel, with the intent to
procure an opinion that might operate to shelter and protect
him against a suit, but on the contrary, if he, being doubtful
of his legal rights, consulted learned counsel with a view to
ascertain them, and afterwards pursued the course pointed
out by his legal adviser, he is not liable to this action, not-
withstanding his counsel may have mistaken the law.” +

 

of the assessors, to receive evidence of the qualifications of voters whose
names were not on the public list. The county attorney had advised the
defendant, that the notice was required by law to be inserted in the warrant;
but in this case it was contained in a separate paper, posted up by the side
of the warrant; but this fact, though known to the defendant, he did not
state to the grand-jury. And the Court seemed to think, that if this omission
had not been intentional and fraudulent, the opinion of the county attorney
would have furnished probable cause for the prosecution.

1 Stone v. Swift, 4 Pick. 393. In this case, however, no question was
made, whether any material fact had been omitted. See acc. Hall v. Suy-
dam, 6 Barb. 8. C. R. 83; Thompson v. Mussey, 3 Greenl. 310. See also
Blunt v. Little, 3 Mason, 102; Commonwealth v. Bradford, 9 Met. 268. If
any material fact were culpably withheld from the counsel, or if a contrary
opinion were given by another of his legal advisers, or if the prosecution
were malicious, it is held that the advice of counsel will not be a sufficient
defence. Stevens v. Fassett, 14 Shepl. 266.
PART Iy.] MARRIAGE. 518

MARRIAGE.

§ 460. Marrtace is a civil contract, jure gentium, to the
validity of which the consent of parties, able to contract, is
all that is required by natural or public law. If the contract
is made per verba de presenti, though it is not consummated
by cohabitation, or, if it be made per verba de futuro, and be
followed by consummation, it amounts to a valid marriage,
in the absence of all civil regulations to the contrary And
though in most if not all the United States there are statutes,

 

1 [“ By the Common Law both in England and in this country, the age of
consent is fixed at twelve in females and fourteen in males. Contracts of
marriage between infants, being both of the age of consent, if executed, are
as binding as if made by adults. Co. Lit. 79 b ; Reeve’s Dom. Rel. 236, 237;
20 Am. Jur. 275 ; 2 Kent, Comm. (6th edit.) 78 ; Pool v. Pratt, 1 Chip. 254 ;
The Governor v. Rector, 10 Humph. 61. This rule, originally engrafted into
the Common from the Civil Law, (1 Bl. Comm. 436; Macph. on Inf. 168,
169,) is undoubtedly an exception to the general principles regulating the
contracts of infants, and might at first seem to disregard the protection and
restraint with which the law seeks to surround and guard the inexperience
and imprudence of infancy. But in regulating the intercourse of the sexes,
by giving its highest sanctions to the contract of marriage, and rendering it,
as far as possible, inviolable, the law looks beyond the welfare of the individ-
ual and a class, to the general interests of society ; and seeks, in the exercise
of a wise and sound policy, to chasten and refine this intercourse, and to
guard against the manifold evils which would result from illicit cohabitation.
With this view, in order to prevent fraudulent marriages, seduction, and
illegitimacy, the Common Law has fixed that period in life when the sexual
passions are usually first developed, as the one, when infants are deemed to
be of the age of consent, and capable of entering into the contract of mar-
riage. By Bigelow, J. Parton v. Hervey, 1 Gray, 121; Bennett v. Smith,
21 Barb. (N. Y.) 439; Governor v. Rector, 10 Humph. 57; Godwin v.
Thompson, 2 Greene, (Iowa,) 329. See Shafher v. State, 20 Obio, 1.]

2 2 Kent, Comm. p. 87; Fenton v. Reed, 4 Johns. 52; Jackson v. Winne,
7 Wend. 47; [Hallet v. Collins, 10 How. (U. 8.) 174; Clayton v. Wardell,
4 Comst. 230; Graham v. Bennett, 2 Cal. 503; Bishop on Mar. & Div. book
ii. ch. 3, § 29-45; Book iii. ch. 8, § 152-175.]
514 LAW OF EVIDENCE. [PART IV.

regulating the celebration of the marriage rites, and inflict-
ing penalties on all who disobey the regulations, yet it is
generally considered that, in the absence of any positive
statute, declaring that all marriages, not celebrated in the
prescribed manner, shall be absolutely void, or that none but
certain magistrates or ministers shall solemnize a marriage,
any marriage, regularly made according to the Common
Law, without observing the statute regulations, would still
be a valid marriage! A marriage, celebrated in any coun-

 

1 2 Kent, Comm. pp. 90, 91 ; Reeve’s Dom. Rel. pp. 196, 200, 290; Milford
v. Worcester, 7 Mass. 55, 56; [Parton v. Hervey, 1 Gray, 119]; London-
derry v. Chester, 2.N. Hamp. 268; Cheseldine v. Brewer, 1 Har. & McH.
152; Hantz v. Sealey, 6 Binn. 405. It has more recently been held in Eng-
land, by Dr. Lushington, that prohibitory words, in a marriage-act, will not
authorize an inference of nullity of the marriage, unless the nullity was de-
clared in the act. Catterall v. Sweetman, 1 Rob. Eccl. R. 304. In a sub-
sequent cause between the same persons, it appeared that they had been
married in New South Wales, by a minister of the Scotch Presbyterian
Church, according to the forms of the statute provided for members of that
Church alone, in that Colony; but that neither of the parties belonged to
that Church, and so were not within the terms of the statute. But the same
learned Judge held that the marriage, nevertheless, was sufficiently valid, as
between the parties, to found thereon a decree of divorce for a violation ot
the marriage vow. His observations on this delicate question were as fol-
lows: ‘The question which I have to decide on the present occasion is,
whether the marriage which has taken place between these parties is a suffi-
cient marriage to enable the Court to pronounce a sentence of separation by
reason of adultery, which it is admitted on all hands has been committed by
the wife. It is true, that the allegation given in the case commences by plead-
ing the local act of the Legislature of New South Wales, from which it would
appear to follow, that it was intended to plead that the marriage was held in
pursuance of the local act. Whether that is so or not, if the Court is satisfied
that the marriage is sufficiently valid to enable it to pronounce for a separa-
tion, it will not be necessary to enter into a consideration of this act. I shall
not give my judgment at length for this obvious reason : when the case came
for my consideration in July, 1845, (Jur. 950; 1 Rob. 304,) I then stated,
after great consideration, all the reasons that occurred to me to bring my mind
to the conclusion that the marriage in question was not void. Now, if I could
not pronounce that the marriage in question was void, it seems to me that I
must pronounce it valid for certain purposes; and if valid for certain pur-
poses, valid for the husband or the wife, as the case might be, to obtain a
separation for a violation of the marriage vow. How does the case stand ?
PART Iy.] MARRIAGE. 515

try according to its own laws, is recognized and valid in
every other country, whose laws or policy it may not

 

New South Wales is a colony of Great Britain, amenable, according to all
the authorities, to all those acts of Parliament, and all that law which belonged
to the mother-country, and which were considered to be applicable to a new
colony. No doubt very great difficulties have from time to time arisen, both
as to what Common Law, and what acts of Parliament should be imported
into a colony. But it is unnecessary to discuss this question, because it has
been discussed over and over again by more able Judges than myself. And
there can be no doubt that the ancient law of Great Britain must have been
carried to this colony, because Lord Hardwicke’s Act, being expressly con-
fined to England and Wales, could not be imported to a colony; and conse-
quently, the law that existed in New South Wales was the original law of
England, as it existed before Lord Hardwicke’s Act. Upon that has been
engrafted, under the authority of an act of Parliament, this act of the Local
Legislature. I have already determined, and I shall not repeat my reasons,
that, whatever may be the effect of the local act, it does not render the mar-
riage invalid; then the simple question is, if the local act does not render it
invalid, whether, according to the ancient law of England, a marriage before
a Presbyterian minister is valid, and valid only to the extent upon which I
am required to pronounce an opinion, namely, to pronounce a separation a
mens@ et thoro... When I consider how much that was discussed in the cele-
brated case of The Queen ». Millis, (10 Cl. & Fin. 534,) when all the au-
thorities that could be adduced were brought to bear in the opinions of the
learned Judges on that occasion, I am justified in saying this; there was
nothing fell from any one of the Judges in the House of Lords —TI am not
speaking of the opinion of the Common-Law Judges — but of the law Lords
— which in any way intimated that the marriage would not be sufficient to
enable the Court to proceed to a separation a mensd et thoro. I am not dis-
posed to make the decision of The Queen v. Millis any authority further than
it goes, and for two reasons: first, the law Lords were divided, and it was
only in consequence of the form in which the case came before them, that it
could be considered a judgment at all. In the next place, and for a reason
equally strong, that, throughout the whole of our colonies, at various times
and various places, if I were to hold that the presence of a priest in the or-
ders of the Church of England was necessary to the validity of a marriage, I
should be going the length of depriving thousands of married couples of a
right to resort to this Court for such benefit as it can give in cases of adul-
tery or cruelty. It is notorious that, till within a few years, there were no
chaplains belonging to the East India Company ; and if I were to adopt an-
other principle, the result would be this: that, as to all those marriages had
by the collectors in the service of the East India Company, and had by
Judges when no priest was procured, I should be entering into this disquisi-
tion, a disquisition impossible to follow, namely, whether there was a marriage
#

516 LAW OF EVIDENCE. _ [PART Iv.

contravene ;! but the converse of this rule is not universally
true?

 

ex necessitate, because no clergyman was to be found. Now, until Lam con-
trolled by a superior authority, I unquestionably, in this case, and in all
others, wherever I find, in any of the colonies, no local law prohibiting a
marriage of this description, and no act of Parliament reaches it —in all
these cases I shall look at the marriage according to the ancient canon
law; and where it has been had, not before a clergyman, but consent is had
de facto, I shall hold that sufficient to enable the Court to pronounce a decree,
when it is necessary to pronounce one. I have no right to postpone my de-
cision and give a more deliberate judgment, because I do not know that any
time I could give would throw light on the question ‘beyond what is to be
collected from former decisions; and I am certain that no examination into
the cases will induce me to change my opinion until I am overruled by an
authority superior to mine.” See Catterall v. Catterall, 11 Jur. 914; [Dun-
can v. Cannan, 23 Eng. Law & Eq. 288.]

1 Schrimshire v. Schrimshire, 2 Hagg. Consist. R.407,419; 2 Kent, Comm.
91,92. The exceptions to the generality of the rule, that the lex loci governs
the contract of marriage, are of three classes: (1.) in cases of incest and po-
lygamy; (2.) when prohibited by positive law; (3.) when celebrated in
desert or barbarous countries, according to the law of the domicile. Story,
Confl. Laws, § 114-119; [Bishop on Mar. & Div. § 124-151.]

2 Per Ld. Stowell, 2 Hagg. Consist. R. 390, 391; Story, Confl. Laws,. §
119-121; [Bishop on Mar. & Div. § 124-151.] If parties go abroad for the
purpose of contracting in a foreign State a marriage, which could not have
been contracted in their own country, but is not in violation of good morals,
it seems, that it is to be held valid, if not made invalid by express stat-
ute. Medway v. Needham, 16 Mass. 157; Putnam v. Putnam, 8 Pick.
433; Bull. N. P. 113, 114; Phillips v. Hunter, 2 H. Bl. 412; Story, Confl.
Laws, § 123 a, 6,124. [A marriage in Massachusetts by a woman previ-
ously married in another State, and there divorced for acts of hers which
would not be a cause of divorce in Massachusetts, is valid in Massachusetts,
though contracted while her former husband is still living. Clark v. Clark,
8 Cush. 385. In giving the opinion of the Court, Shaw, C. J., said: “ Mar-
riage originates in a contract, and whether the contract be valid or not,
depends, prima facie, upon the law of the place where the contract is en-
tered into. But marriage, where lawfully contracted and valid, establishes
a relation between the parties, universally recognized in all civilized and
Christian communities, from which certain rights, duties, and obligations are
derived; these rights and duties attach to the persons of the parties, as
husband and wife, and follow them when they change their domicile from
one jurisdiction to another. Among these rights is that of seeking the disso-
lution of the conjugal relation in the manner and for the causes allowed by the
law of the place where they have bond fide and without any sinister pur-
PART IV.| MARRIAGE. 517

§ 461. The proof of marriage, as of other issues, is either
by direct evidence, establishing the fact, or by evidence of
collateral facts and circumstances, from which its existence
may be inferred. Evidence of the former kind, or what is
equivalent to it, is required upon the trial of indictments
for polygamy and adultery, and in actions for criminal con-
versation.' It being necessary, in such cases, to prove a
marriage valid in all respects. It is not sufficient to prove
that the parties went through a religious ceremony purport-
ing to be a marriage, unless it is also shown that it was
recognized by the law of the country as the form of con-
tracting a valid marriage.2 But in all other cases, any other
satisfactory evidence is sufficient. The affirmative sentence

 

pose taken up their domicile ; and the tribunals of such government acting
in conformity to its laws, have jurisdiction of the persons of the parties and
of the subject-matter of the complaint, which is their conjugal relation, and
their duties in it; and therefore a decree of divorce there pronounced, in
due course of law, must be regarded as valid to effect the dissolution of the
bond of matrimony everywhere. Barber v. Root, 10 Mass. 260.” See
True v. Ranney, 1 Foster, (N. H.) 52; Harrison v. Harrison, 20 Ala. 629;
Commonwealth v. Hunt, 4 Cush. 50.]

1 Morris v. Miller, 4 Burr. 2059 ; Leader v. Barry, 1 Esp. 353 ; Common-
wealth v. Norcross, 9 Mass. 492 ; Commonwealth »v. Littlejohn, 15 Mass. 163 ;
The People v. Humphrey, 7 Johns. 314. On the trial of an indictment for
polygamy or adultery, the prisoner’s deliberate declaration that he was
married to the alleged wife, is admissible as sufficient evidence of the mar-
riage. Regina v. Upton, 1 C.& Kir.165,n. Especially if the marriage was
in another country. Regina v. Simmonsto, Id. 164; Regina v. Newton,
2M. & Rob. 503; Cayford’s case, 7 Greenl. 57; Truman’s case, 1 East, P.
C. 470. So in an action for criminal conversation. Rigg v. Curgenven,
2 Wils. 399, citing Morris v. Miller, 4 Burr. 2057; Forney v. Hallacher,
8S. & R. 159; Alsleger v. Erb, 2 Am. Law J. 49, N. S. But see contra,
The People v. Miller, 7 Johns. 314; The State v. Roswell, 6 Conn. 446. In
Massachusetts, in all cases where the fact of marriage is required or offered
to be proved, evidence of general repute, or of cohabitation as married per-
sons, and any circumstantial or presumptive evidence from which the fact
may be inferred, shall be competent evidence for consideration. Stat. 1840,
ch. 84; Stat, 1841, ch. 20. Knower v. Wesson, 13 Met. 143; [Clayton v.
Wardell, 4 Comst. 230.]

2 Catherwood v. Caslon, 13 M. & W. 261; The State v. Hodgskins, 1
Applet, 155.

VOL. Il. 44
518 LAW OF EVIDENCE. [PART IV.

of a Court having jurisdiction of the question of marriage
or no marriage, is conclusive evidence of the marriage.
Other direct proof is made either by the testimony of a
witness present at the celebration, or of either of the
parties themselves, where they are competent; or by an
examined or certified copy of the register of the marriage,
where such registration is required by law, with proof of the
identity of the parties. It is not necessary, in other cases,
to prove any license, publication of banns, or compliance
with any other statute formality, unless the statute express-
ly requires it as preliminary evidence?

§ 462. Marriage may also be proved, in civil cases, other
than actions for seduction, by reputation, declarations, and
conduct of the parties, and other circumstances usually ac-
companying that relation. The nature and admissibility of
the evidence of reputation, has already been considered in
the preceding volume.* In regard to the language and con-

 

1 Ante, Vol. 1, §§ 484, 493, 544, 545.

2 Ibid. See, as to proof by the parties themselves, Cowp. 593; Lomax
v. Lomax, Cas. temp. Hardw. 380; Hubback, Evidence of Succession, pp.
241, 242, 244; Standen v. Standen, Peake’s Cas. 32; [Maxwell v. Chap-
man, 8 Barb. Sup. Ct.R.579. The rule of law, “ Omnia rite acta preesumun-
tur,” applies with particular force to cases of presumption in favor of mar-
riage and legitimacy. Harrison v. Southampton, 21 Eng. Law & Eq. R. 343 ;
Ward v. Dulaney, 23 Miss. 410.]

3 Hubback, Evid. of Succession, p. 239.

4 Anite, Vol. 1, §§ 103, 104, 106, 107, 181-184, It has been stated, in a
work of' distinguished merit, (Hubback, Evid. of Succession, p. 244,) that
reputation of marriage, unlike that of other matters of pedigree, may pro-
ceed from persons who are not members of the family. But in the principal
‘ease cited to this point, (Evans v. Morgan, 2 C. & Jer. 453,) the chief rea-
son for admitting the sufficiency of such evidence, after verdict, was, that
_ the witness was not cross-examined, and that the defendant did not put the
want of proof of the marriage to the Judge, as a ground of nonsuit, so that
the plaintiff might have had an opportunity of supplying the defect by other
evidence. See Johnson v. Lawson, 9 Moore, 187; 2 Bing. 88, S. C.; Roe
v. Gore, 9 Moore, 187, n.; Donelly v. Donelly, 8 B. Monr.118; Stevenson
v. McReary, 12 S. & M.9; Taylor v. Robinson, 16 Shepl. 323 ; [Dunbar-
ton v. Franklin, 19 N. H. 257; State v. Winkley, 14 Ib. 480; Clayton ».
PART IV.]: MARRIAGE. 519

duct of the parties, it is competent to show their conversation
and letters, addressing each other as man and wife;! their
elopement, as lovers, and subsequent return as married per-
sons ;” their appearing in respectable society, and being there
received as man and wife ;° their observance of the cus-
toms and usages of society, peculiar to the entry upon or
subsistence of that relation ;+ the assumption by the woman
of the name of the man, the wedding-ring, the apparel
(where such difference exists) appropriate to married women,
and any other conduct, sciente, vidente, et patiente viro, indic-
ative of her marriage to him. Their cohabitation, also, as
man and wife, is presumed to be lawful until the contrary
appears. The like inference is drawn from the baptism,
acknowledgment, and treatment of their children by them
as legitimate ;° and from their joining as man and wife in
the conveyance of her real estate, or her joining with him in
a deed or other act, releasing her right of dower in his
estate ;“ and from the disposition of property to a party by
a mode of assurance, which is operative only where legal
consanguinity exists; such as, a covenant to stand seised,
and the like, or, by the devolution upon, and enjoyment by
children, of property, to which, unless they were legitimate,
they would not have been entitled.§ The recognition or

 

Wardell, 4 Comst. 230; Hicks v. Cochran, 4 Edw. Ch. Rep. 107; Thorn-
dell v. Morrison, 25 Penn. State R. 326; Copes v. Pearce, 7 Gill, 247; Mar-
tin v. Martin, 22 Ala. 86; Harman v. Harman, 16 Ill. 85; Trimble v.
Trimble, 2 Carter, Ind.) 76.]

1 Alfray v. Alfray, 2 Phillim. Eccl. R. 547; [Gaines v. Relf, 12 How.
U. S. 472.]

2 Cooke v. Lloyd, Peake’s Cas. App. Ixxiv.

3 Hubback, Evid. of Succession, p. 247.

4 Eaton v. Bright, 2 Phillim. Eccl. R. 85 ; Fownes v. Ettricke, Id. 257.

5 Hubback, Evid. of Succession, pp. 247, 248.

6 Doe v. Fleming, 4 Bing. 266; Hubback, Evid. of Succession, p. 248-
251, 262; Bond v. Bond, 2 Phillim. Ecel. R. 45; The People v. Humphrey,
7 Johns. 314; Newburyport v. Boothbay, 9 Mass. 414.

7 Hervey v. Hervey, 2 W. BI. 877; Hubback, Evid. of Succession, p. 248.

8 Slaney v. Wade, 1 My. & C. 358; Hubback, Evid. of Succession, pp.
248, 254. :
520 LAW OF EVIDENCE. [PART IV.

proof of collateral relationship, also, is admissible as evi-
dence of the lawful marriage of uhase through whom that
relationship is derived.

§ 463. Where a contract in writing is by the law of the
country, or of the religious community, made essential to
the marriage, as is the case among the Jews, it should be
produced as the proper evidence of the fact.2~ And where
written contracts are not requisite nor usual, yet if they
have been in fact made, though by words de futuro, these,
as well as marriage articles, and other ante-nuptial and dotal
acts, are admissible in evidence, as tending to raise a pre-
sumption that the contemplated marriage took effect? A
certificate of marriage, also, by the officiating clergyman or
magistrate, though ordinarily not in itself evidence of the fact
it recites, yet if proved to have been carefully kept in the
custody of the party whom it affects, and produced from
the proper custody, it may be read as collateral proof, in the
nature of a declaration and assertion by the party, of the
facts stated in the paper Such certificate, also, or a copy
of the parish register or other document of the like character,
may be read as evidence confirmatory of the proof by repu-
tation and cohabitation And where the marriage appeared
to have been solemnized by one who publicly assumed the
office of a priest, in a public chapel, and was followed by
long cohabitation of the parties, this was held sufficient to
warrant the presumption that he was really a priest, and that
the marriage was therefore valid.

§ 464. The evidence of marriage may be rebutted by proof

 

1 Katon v. Bright, 2 Phillim. Eccl. R. 85; Id. 161,8.C. See ante, Vol.
1, § 194.

2 Semb. Horn v. Noel, 1 Campb. 61. See, as to the Jewish contract,
Lindo »v. Belisario, 1 Hagg. Consist. R. 225, 247, App. 9; Goldsmid v. Bro-
mer, Id. 824.

3 Hubback, Evid. of Succession, p. 257.

4 Hubback, Evid. of Succession, pp. 258, 259.

5 Doe v. Grazebrook, 4 Ad. & El. 406, N. 8.

6 Rex v. Brampton, 10 East, 287.
PART IV.] MARRIAGE. 521

that any circumstances, rendered indispensably necessary by
law to a valid marriage, were wanting! Thus, it may be
shown that either of the parties had another husband or wife,
living at the time of the marriage in question; or, that the
parties were related within the prohibited degrees ; or, that
consent was wanting, the marriage having been effected by
force, or fraud ; or, that one of the parties was at the time an
idiot, or non compos mentis, or insane” And where marriage
is inferred from cohabitation, the presumption may be de-
stroyed by evidence of the subsequent and long continued
separation of the parties,

 

1 Milford v. Worcester, 7 Mass. 48.

2 2 Kent, Comm. pp. 76, 77; 1 Bl. Comm. 438; Gathings v. Williams, 5
Tred. 487. Where the marriage is invalidated on the ground of want of
consent, the subject must have been investigated and the fact established, in
a suit instituted for the purpose of annulling the marriage. 2 Kent, Comm.
p- 77; Wightman v. Wightman, 4 Johns. Ch. R. 343. See also Middle-
borough v. Rochester, 12 Mass. 363; Turner v. Myers, 1 Hagg. Consist. R.
414; [Gaines v. Relf, 12 How. U. S.472; True v. Ranney, 1 Foster, (N. H.)
52; Keyes v. Keyes, 2 Ib. 553; Heffner v. Heffner, 23 Penn. State R. 104;
Martin v. Martin, 22 Ala. 86; Powell v. Powell, 27 Miss. 783; Robertson v.
Cole, 12 Texas, 8356; Bishop on Mar. & Div. § 63-123, and § 176-271.
The admission of the husband that at the time of contracting his present /
marriage, he had a former wife living, is not competent evidence even in a ;
civil action, to prove the nullity of his second marriage. Gaines v. Relf, 12
How. U. S. 472.]

3 Van Buskirk v. Claw, 18 Johns. 346; [Weatherford v. Weatherford, 20
Ala. 548. But if a marriage was duly solemnized between parties capable
of contracting, it cannot be annulled, nor any of its consequences as to third
persons be relieved against, although it was contracted and solemnized for
the purpose of preventing such persons from receiving property which they
would otherwise have been entitled to. McKinney v. Clark, 2 Swan, (Tenn.)
821.) .

44%
522 LAW OF EVIDENCE, [PART IV.

NUISANCE.

§ 465. Nutsances, in its largest sense, signifies “ anything
that worketh hurt, inconvenience, or damage.” It is either
public, annoying all the members of the community ; or it is
private, injuriously affecting the lands, tenements, or here-
ditaments of an individual. The latter only will be here
considered.

§ 466. Nuisances in one’s dwelling-house, are ail acts done
by another from without, which render the enjoyment of life
within the house uncomfortable; whether it be by infect-
ing the air with noisome smells, or with gases injurious to
health; or by exciting the constant apprehension of danger,
whether by keeping great quantities of gunpowder near the
house, or by deep and dangerous excavation of the neighbor-
ing soil, or by suffering the adjoining tenement to be ruinous,
and in danger of falling upon or otherwise materially injuring
the neighboring house and its inmates ;? or, by the exercise
of a trade by machinery, which produces continual noise and
vibration in the adjoining tenement; or, by so exercising a
trade, as naturally to produce strife, collision, and disorderly
conduct among the persons resorting to the premises. So it is
a nuisance, if one overhangs the roof of his neighbor, throw-
ing the water upon it from his own; or, if he obstructs his
neighbor’s ancient lights; or, if, without due precaution, he
pulls down his own walls or vaults, whereby injury is caused

 

1 3 Bl. Comm. 215 ; [Coker v. Birge, 9 Geo. 425. An action on the case
for a nuisance is not abated or barred by a subsequent abatement of the
nuisance by the plaintiff. Call v. Buttrick, 4 Cush. 845.]

2 Keilw. 98 b, pl. 4; Co. Lit. 56 a, note (2,) 56 b; Loring v. Bacon, 4
Mass. 575, 578.
PART Iv.] NUISANCE. 523

to the buildings or wall of his neighbor. But the mere cir-
cumstance of juxtaposition does not oblige him to give notice
to his neighbor of his intention to remove his own walls;
nor is he bound to use extraordinary caution, where he is
ignorant of the existence of the adjacent wall, as, if it be
under the ground.!

§ 467. In regard to lands, it is a nuisance to carry on a
trade in the vicinity, by means of which the corn and grass
or the cattle are injured; or to neglect to repair and keep
open ditches by means of which the land is overflowed. It
is also a nuisance to stop or divert water, that uses to run
to another’s mill, or through or by his lands; or to corrupt a
watercourse and render it offensive or less fit for use.2 For
every man is entitled to the enjoyment of the air in its |
natural purity, of his ancient lights without obstruction, of
the flow of waters in their natural course and condition
through his own land ; [and to the support of the neighboring
soil, both to preserve the surface of his own in its natural
state, unbroken, and to uphold his ancient buildings thereon?

 

1 Trower v. Chadwick, 3 Bing. N. C. 334; 3 Scott, 699, S. C.; Chadwick
v. Trower, 6 Bing. N. C. 1; Panton v. Holland, 17 Johns. 92; The People
v. Cunningham, 1 Denio, 524.

2 3 Bl. Comm. 216-218; [Walter v. Selfe, 4 Eng. Law & Eq. 15; New-
hall v. Ireson, 8 Cush. 592, 599. “Where it has been considered that a
riparian proprietor had authority to make use of the stream for purposes
of irrigation, and thus by that use divert a portion of it, it has been held
under the condition that such diversion was, under all the circumstances, a
reasonable use of the stream, and that the surplus of the water thus used
must be returned into its natural channel. These cases carry a strong im-
plication that a diversion of the entire stream, or of a considerable part of
it, is prejudicial to the proprietor below, and is not justifiable. Weston v.
Alden, 8 Mass. 136; Colburn v. Richards, 18 Mass. 420; Cook v. Hall, 3
Pick. 269 ; Embrey v. Owen, 6 Welsb. H. & Gord, 353.” By Shaw, C. d.,
in Newhall v. Ireson, 8 Cush. 599.]

2 Wyatt v. Harrison, 3 B. & Ad. 871; Dodd v. Holme, 1 Ad. & El. 493;
3 .N. & M. 739. And see the learned notes of Mr. Rand, to the opposing
case of Thurston v. Hancock, 12 Mass. 212, 227 a, 228 a; Gale’v. What-
ley on Easements, p. 216-227. [Where one does a lawful act on his own
premises, he cannot be held responsible for injurious consequences that may
524 LAW OF EVIDENCE. [PART Iv.

But it is not a nuisance to divert a subterranean flow of

water under another’s land, by lawful operations on one’s
1

own.

§ 468. In regard to incorporeal hereditaments, nuisances
consist in obstructing or otherwise injuriously affecting a
way, which one has annexed to his estate, over the lands
of another; or in impairing the value of his fair, market,
ferry, or other franchise, by any act causing a continuing
damage.”

§ 469. If the nuisance is injurious to the reversion, the
reversioner, and the tenant in possegsion, may each have an
action for his separate damage;* and in the action by the
former the tenant is a competent witness.t And though the
nuisance might be abated before the estate comes into pos-

 

result from it, unless it was so done as to constitute actionable negligence,
that is, if in doing it, he did not use such care and caution as men of com-
mon prudence usually exercise in the management of their own concerns.
Rockwood v. Wilson, 11 Cush. 221, 226.]

1 Acton v. Blundell, 12 M. & W. 324.

23 BL Comm. 218, 219; [Boston & Lowell, &c., Corp. v. Salem, &c.
Railroad Co. 2 Gray, 1. If a party suffers special damage from a public
nuisance he may have his action therefor against the person maintaining the
nuisance. Stetson v. Faxon, 19 Pick. 147. In this case, the defendant had
erected a warehouse that projected several feet into the street, and beyond
the plaintiff’s warehouse, which stood near on the line of the street, by
means of which the plaintiff’s warehouse was obscured from the view of the
passengers, and travel was diverted to a distance from it, and it was rendered
less eligible as a place of business, and the plaintiff was obliged to reduce
the rent, and it was held to be such special damage as would give the plain-
tiff a right of action. Cole v. Sprowl, 35 Maine, 161; Baxter v. Winooski
Turnpike Co. 22 Vt. 114; Frink v. Lawrence, 20 Conn. 117. No action

_will lie against a town by an owner of land who is prevented from a conve-

( nient access thereto, and is thereby damaged, by reason of a defect in the

‘highway, which the town is obliged to keep in repair. Smith v. Dedham, 8
Cush. 522.]

3 Biddlesford v. Onslow, 3 Lev. 209; Shadwell ». Hutchinson, 4 C. & P.
333.

4 Doddington v, Hudson, 1 Bing. 257.
PART IV.] " NUISANCE. 525

session, yet if it is capable of continuance, the reversioner
may maintain an action.

§ 470. In an action upon the case for a nuisance, the
plaintiff must prove, (1.) his possession of the house or land,
or his reversionary interest therein, if the action is for an
injury to this species of interest; or, his title to the incor-
poreal right alleged to have been injured; (2.) the inju-
rious act alleged to have been done by the defendant ;
and (3.) the damages thence resulting. The action is
local; but, ordinarily, the allegation of the place will be
taken merely as venue, unless a local description is precisely
and particularly given, in which case it must be proved as
laid?

§ 471. (1.) If the injury is done to the plaintiff’s incorpo-
real right, and the title is alleged by prescription, such title
must be proved ; but though it was formerly held necessary
to allege specially a right by prescription, it is now deemed
sufficient to allege the right generally, as incident to the
plaintiff’s possession to the house or land.’ A legal title to
an incorporeal hereditament is proved by an uninterrupted
adverse enjoyment for twenty years;* and it may be pre-
sumed by the Jury, from such enjoyment for a shorter period,
if other circumstances support the presumption. It may also
be claimed by a quasi estoppel ; as, if one build a new house
on his land and afterwards sell it to another, neither the
vendor, nor any one claiming under him, can obstruct the

 

1 Jesser v. Gifford, 4 Burr. 2141; Shadwell v. Hutchinson, 3 C. & P. 615.

2 Hamer v. Raymond, 5 Taunt. 789.

31 Chitty on Pl. 330; 2 Saund. 175 a, note; Yelv. 216 a, note (1), by
Metcalf; Story v. Ordin, 12 Mass. 157. Proof of the plaintiff’s possession
of part of the premises, is sufficient to support the general allegation, that he
was possessed of a certain messuage and premises. Fenn v. Grafton, 2 Bing.
617. And see, as to user, Page v. Hatchett, 10 Jur. 634.

4 Lewis v. Price, cited 2 Saund.175 a; Winchelsea Causes, 4 Burr. 1963;
Rex v. Dawes, Id. 2022; Bealey v. Shaw, 6 East, 215; Hill v. Crosby, 2
Pick. 466; Angell on Adverse Enjoyment, p. 23-29, 62, 68; Ante, Vol. 1,
§ 17, and cases there cited. :
.

526 LAW OF EVIDENCE. [PART Iv.

lights! In either case, the extent of the right is ascertained
by the extent and nature of the enjoyment. Therefore, if
an. ancient window to a shop or malthouse is somewhat dark-
ened, no action lies, if there is still light enough for the pur-
pose for which it has been used.? And if an ancient window
is enlarged, the adjoining owner cannot obstruct the pas-
sage of light through the old window, notwithstanding the
party may derive an equal quantity of light from the new
one2 But to maintain this action, there must be a substan-
tial privation of light, so as to render the occupation of the
house uncomfortable, or impair its value ; the merely taking
off a ray or two is not sufficient. So, in regard to a way by
prescription; the extent of the enjoyment determines the ex-
tent of the right. If therefore such a way has always been
used for one purpose, as, to cart fuel, it cannot be used for a
different purpose, as, to cart stones; and if it has been used
only for a way to Black-acre, it cannot be used for a way to
White-acre, which lies adjoining and beyond it, though be-
longing to the same person.®

§ 472. (2.) As to the proof, that the injury was caused by
the defendant, it is sufficient to show that it was done by
his authority, or, that, having acquired the title to the land
after the nuisance was erected, he has continued it.6 Thus,
if the nuisance is erected on the defendant’s land, by his
permission, he is liable.’ And if the defendant, after judg-

 

1 Ante, Vol. 1, §§ 39,45; Best on Presumptions, pp. 102, 103, 106; Palmer
v. Fletcher, 1 Lev. 122; Compton v. Richards, 1 Price, 27; Riviere v. Bower,
Ry. & M. 24; Coutts v. Gorham, 1 M. & Malk. 396 ; Story v. Odin, 12 Mass.
157.

2 Martin v. Goble, 1 Campb. 320, 322.

3 Chandler v. Thompson, 3 Campb. 80; Bealey v. Shaw, 6 East, 208.

4 Back v. Stacey, 2 C. & P. 465; Pringle v. Wernham, 7 C. & P. 377;
Wells v. Ody, Id. 410.

5 Senhouse v. Christian, 1 T. R. 569, per Ashhurst, J.; Howell v. King, 1
Mod. 190; 39 H. 6, 6; Davenport v. Lamson, 21 Pick. 72.

6 Penruddock’s case, 5 Co. 100; Dawson v. Moore, 7 C. & P. 25.

7 Winter v. Charter, 3 Y. & J. 808. If the injury is caused by a wall
erected partly on the defendant’s land, case lies for the nuisance, though the
wall is erected in part on the plaintiff’s land, by an act of trespass. Wells
v. Ody, 1 M. & W. 452.
PART Ly.] * NUISANCE. : 527

ment against him for the nuisance, lets the same land to a
tenant with the nuisance continuing upon it, he, as well as
his tenant, is liable for its continuance, in another action.
So, if the plaintiff has purchased a house, against which a
nuisance has been committed, he may maintain this action
for the continuance of the nuisance, after request to abate it2
If the premises were let for the purpose of carrying on a
trade or business which is necessarily injurious to the ad-
joining proprietors, the lessor is liable, as the author of the
nuisance, upon proof of the injurious nature of the business.
But if the purpose for which the premises were let was law-
ful, and the business was not necessarily injurious, except
when conducted in a particular manner, the plaintiff must
show that the lessor, who is sued, either knew or had reason
to believe that it would be so conducted#

§ 473. Ordinarily, every person is bound to use reasonable
care to avoid or prevent danger or damage to his person and
property. Wherever, therefore, the injury complained of
would never have existed but for the misconduct or culpable
neglect of the plaintiff, as in the case of an obstruction within
the limits of the highway, but outside of the travelled path
against which he negligently drove his vehicle ;* or, in the

1 Rosewell v. Prior, 2 Salk. 460; Staple v. Spring, 10 Mass. 72; [Hodges
v. Hodges, 5 Met. 205; Brown v. Cayuga, &c. R. R. 2 Kernan, (N. Y.) 486.]

2 Penruddock’s case, 5 Co. 100, 101; Willes, R. 583.
' 8 Fish v. Dodge, 4 Denio, 311. [* By the Common Law, the occupier and
not the landlord is bound as between himself and the public, so far to keep
the buildings in repair that they may be safe for the public. And such oc-
cupier is, prima facie, liable to third persons for damages arising from any
defect. Regina v. Watts, 1 Salk. 357; s. c. 2 Ld. Raym. 856; 8. c. 3 Ib.
18; Cheetham v. Hampson, 4 T. R. 318. But if there be an express agree-
ment between landlord and tenant, that the former shall keep the premises
in repair, so that in case of a recovery against the tenant, he would have his
remedy over, then to avoid circuity of action, the party injured by the defect
and want of repair may have his action in the first instance against the land-
lord. Payne v. Rogers, 2 H. Bl. 350. But such agreement must be dis-
tinctly proved.” By Shaw, C. J. Lowell v. Spaulding, 4 Cush. 278 ; Oak-
ham v. Holbrook, 11 Cush. 302.]

4 Smith v. Smith, 2 Pick. 621. See also Flower v. Adam, 2 Taunt. 314;
e
528 . LAW OF EVIDENCE. [PART Iv.

case of a collision at sea, wholly imputable to his own negli-
gence ;! or, of his neglect to shore up his own house, for
want of which it was injured by the pulling down of the de-
fendant’s adjoining house, notwithstanding due care taken
by the latter ;? in these and the like cases the plaintiff cannot
recover, but must bear the consequences of his own fault.
So, if the act of the defendant was at first no annoyance to
the plaintiff, but has become so by his own act, as, by open-
ing a new window in his house, this being the proximate
cause of the annoyance, he cannot recover. This rule, how-
ever, admits of some qualification, where the nuisance affects
the entire dwelling; for the right of habitancy is paramount
to the exigencies of trade. Thus, where a slaughter-house
was erected in the open fields adjacent to a growing city,
but not at that time near to any dwelling-house; but after-
wards, in the progressive increase of the city, dwellings were
erected near to the slaughter-house, insomuch that it ren-
dered them unfit for comfortable habitation; it was held a
nuisance, for which the owners of the houses might have
remedy against the proprietor of the slaughter-house for its
continuance* If the injury is wholly imputable to the de-
fendant, it is perfectly clear that he is liable. The case of
faults on both sides, is one of greater embarrassment ; but

 

Steele v. Inland W. L. Nav. Co. 2 Johns. 283; Lebanon v. Olcott, 1 N.
Hamp. 339.

1 Vanderplank v, Miller, 1 M. & Malk. 169. And see Butterfield v. For-
rester, 11 East, 60.

2 Peyton v. Mayor, &c. of London, 9 B. & C. 725. And see Blyth v. Top-
ham, Cro. Jac. 158 ; Whitmore v. Wilks, 3 C. & P. 8364; Massey v. Goyner,
4 C. & P. 161; Armsworth v. S. East. Railw. Co. 11 Jur. 758; Supra, tit.
CaRRIERS, § 220.

3 Lawrence v. Obee, 3 Campb. 514.

4 Brady v. Weeks, 3 Barb. S.C. R. 157. And see, ace. Cooper v. Barber,
3 Taunt. 99; Dana v. Valentine, 5 Met. 8; Gale & Whatley on Easements,
p- 186, [277.] [It was held to be a nuisance in Walter v. Selfe, 4 Eng.
Law & Kq. 15, to erect and maintain a brick-yard near a dwelling; in Sol-
taw v. De Held, 9 Ib. 104, to erect a belfry upon a building adjoining to the
plaintiff’s dwelling, and placing and ringing there frequently, numerous large
sized bells. See also Bonner v. Welborn, 7 Geo. 296; Coker v. Birge, 9 Ib.
425.]
PART IV.| NUISANCE. 529

the result of the authorities seems to be this, that the burden
of proof is on the plaintiff to show that, notwithstanding any
neglect or fault on his part, the injury is in no respect attrib-
utable to himself, but is wholly attributable to the miscon-
duct on the part of the defendant, as the proximate cause+
Thus, if injury results to the plaintiff’s house by the actual
negligence or misconduct of the defendant, in pulling down
his own, the plaintiff may recover his damages, notwith-
standing he has not himself used the precautions of shoring
up his walls” If the fault was mutual, the plaintiff cannot
recover. Thus, where the injury was occasioned by negli-
gence in taking down a party-wall, and the plaintiff ap-
pointed an agent to superintend the work jointly with the
defendant’s agent, both of whom were to blame, it was held,
that neither could impute negligence to the other’ If the
injury resulted from an omission of duty by the defendant,
such as to repair a way, or a fence, his obligation must be
proved.é

§ 474. (3.) In proof of the damages, it is sufficient for the
plaintiff to show that, by reason of the injurious act or omis-
sion of the defendant, he cannot enjoy his right in as full
and ample a manner as before, or, that his property is sub-
stantially impaired in value. If the injury is a direct in-
fringement of his absolute right, abridging his power and

 

1 Walters v. Pfeil, 1 M. & Malk. 362; Dodd v. Holme, 2 Ad. & El. 493;
3 N. & M. 739; Bradley v. Waterhouse, 3 C. & P. 318; Brock v. Copeland,
1 Esp. 203; Bird v. Holbrook, 4 Bing. 628 ; Ilott v. Wilkes, 3 B. & Ald. 304;
Flower v. Adam, 2 Taunt. 314; Hawkins v. Cowper, 8 C. & P. 473.

2 Walters v. Pfeil, 1 M. & Malk. 362.

3 Vanderplank v. Miller, 1 M. & Malk. 169. See the interesting case of
Dean v. Clayton, 7 Taunt. 489; 2 Marsh. 577 ; 1 Moore, 203, commented on
in Bird v. Holbrook, 4 Bing. 628 ; White v. The Winnisimmet Co. 5 Monthly
Law Rep. 203, [7 Cush. 155]. See Moore v. Abbot, 2 Red. 46.

4 Hill v. Warren, 2 Stark. 377. And see Stafford Canal Co. v. Hallen,
6 B. & C. 317.

5 Co. Lit. 56 a, note (2), Harg. & Butl. edit.; Russell v. The Men of
Devon, 2 T. R. 671; Loring v. Bacon, 4 Mass. 575, 578; Payne v. Rogers,
2 H. Bl. 348.

VOL. II. 45
530 LAW OF EVIDENCE. [PART Iv.

means of exercising it, such as diverting or polluting a
watercourse flowing through his land, or obstructing his
private way, or projecting a roof so as to overhang his
~ grounds, or the like, no evidence of special damage will be
necessary, in order to entitle him to recover ;\but where the
damages are consequential, or affect his relative rights, some
damage must be proved! Where the injury consists in the
destruction of a tenement, the measure of damages is the
value of the old tenement, and not the cost of replacing it
by a new one” And the rule of damages, in all cases of
nuisance, is the amount of injury actually sustained at the
commencement of the snit.?

§ 475. The defence to this action, aside from defect of
proof on the part of the plaintiff, generally consists either in
a license from the plaintiff to do the act complained of, or
in a denial of its injurious consequences, or, where the plain-
tiff claims a prescriptive right, in opposing it by another and
adverse enjoyment, of sufficiently long duration. Thus, if
the evidence of title to a right of way, or to the use of lights,
is derived from an enjoyment of twenty years’ duration, it
may be rebutted by evidence that, during the whole or a part
of that period, the premises were in the occupation of the
defendant’s tenant; for by his laches the defendant was not
concluded ;* or, that the enjoyment of the right by the plain-
tiff was under the express leave or favor of the defendant, or
by mistake, and not adverse to the defendant’s title.® So,
the plaintiff’s claim to the natural flow of water across or by

 

1 Cotterell v. Griffiths, 4 Esp. 69; Allen v. Ormand, 8 East, 4; Fay v.
Prentice, 9 Jur. 877; 1 M. G. & S. 828; Rose v. Groves, 5 M. & G. 618;
6 Scott, N. R. 645; [Newhall v. Ireson, 8 Cush. 595, 599.]

2 Lukin v. Godsall, 2 Peake’s Cas. 15.

3 Thayer v. Brooks, 17 Ohio R. 489 ; [Troy v. Ch. Railroad Co. 3 Foster,
(N. H.) 83.]

4 Daniel v. North, 11 East, 372. See also Barker v. Richardson, 4 B. &
Ald. 578.

5 Campbell v. Wilson, 8 East, 294. And see Brown v. Gay, 3 Greenl.
126; Gates v. Butler, 3 Humph. 447; Cooper v. Barber, 3 Taunt. 99.

\
PART IV.] NUISANCE. 531

his land, without diminution or alteration, may be rebutted
by evidence of an adverse right, founded on more than
twenty years’ enjoyment, to divert or use it for lawful
purposes.!' If the act complained of, was done by the parol
license of the plaintiff, at the defendant’s expense, this is a
good defence, though if the license were executory, it might
have been void by the Statute of Frauds; for even a parol
license, when executed, is not countermandable.?

§ 476. As it is the enjoyment of an incorporeal heredita-
ment that gives the prescriptive right, so the ceasing to enjoy
destroys the right, unless, at the time when the party dis-
continues the enjoyment, he does some act to show that he
intends to resume it within a reasonable time.? Evidence
of abandonment by the plaintiff will therefore be a good
defence against his claim; and the burden of proof will be
on him to show, that the ‘abandonment was but temporary,
and that he intended to resume the enjoyment of the right.
If the plaintiff, having a right to the unobstructed access of
light and air through a window, should materially alter the
form of the wall in which the window is put out, as by
changing it from straight to circular, this will amount to an
abandonment of the right.®

 

1 Beal v. Shaw, 6 East, 214, per Ld. Ellenborough. And see Balston v.
Bensted, 1 Campb. 163.

® Winter v. Brockwell, 8 East, 308. See also 1 Hayw. 28; Liggins v.
Inge, 7 Bing. 690; Webb v. Paternoster, Palm. 71; Bridges v. Blanchard, °
1 Ad. & El. 536. But no license to alter windows can be inferred from the
fact, that the adjoining owner witnessed the alterations as they were going
on, without objection; so as to prevent him from afterwards obstructing
them by building on his own land. Blanchard v. Bridges, 4 Ad. & El. 176.

3 Moore v. Rawson, 3 B. & C. 332, 337, per Bayley, J. And see Garritt

v. Sharp, 3 Ad. & El. 325: [See also Arnold v. Stevens, 24 Pick. 106, in
" which case there was a grant of an incorporeal hereditament; and post,
title PRESCRIPTION. ]

4 Ibid.

5 Blanchard v. Bridges, 4 Ad. & El. 176.
532 LAW OF EVIDENCE. [PART Iv.

PARTNERSHIP.

§ 477. Tue question of partnership is raised in actions
either between the partners themselves, or between them and
third persons ; but the evidence which would prove a part-
nership against the partners, in favor of other persons, is
sufficient, primd facie, to prove it in actions between the
partners alone, and also in actions in their favor, against
third persons.t

§ 478. It is a general rule, that where the action is by
several plaintiffs, they must prove either an express contract
by the defendant with them all, or the joint interest of all
in, the subject of the suit. If they are jointly interested
as partners, they may sue jointly upon a contract made by
the joint agent of all, though the names of all are not ex-
pressed in the instrument. But it must appear, that all who
sue were partners at the time of making the contract ;? for
one who has been subsequently admitted as ‘a partner cannot
join, though it were agreed that he should become equally
interested with the others in all the existing property and
rights of the firm; unless, upon or after the accession of
the incoming partner, there has been a new and binding
promise to pay to the firm as newly constituted ;? or unless

 

1 Peacock v. Peacock, 2 Campb. 46, per Ld. Ellenborough; Stearns v.
Haven, 14 Verm. R. 540. In the latter case, a stranger cannot object that
the contract does not constitute a partnership, in legal strictness, if the par- -
ties themselves have treated it as such a contract. Ibid. See also Bond »v.
' Pittard, 3 M. & W. 357.

2 Ord v. Portal, 3 Campb. 239, 240, n.; Ege v. Kyle, 2 Watts, 222;
McGregor v. Cleveland, 5 Wend. 475.

3 Wilsford v. Wood, 1 Esp. 182. And see Wright v. Russell, 3 Wils.
530; 2 W. Bl. 934; Ex parte Marsh, 2 Rose, 239. The mere transfer
of a balance due to the old firm into the books of the new firm, does not vest
PART IVv.| ‘PARTNERSHIP. 533

the security, being negotiable, has been transferred by indorse-
ment.1_ Where several plaintiffs sue as indorsees of a bill,
indorsed in blank, they are not bound to prove any part-
nership, nor any transfer expressly to themselves; unless it
should appear that it had once been specially transferred to
some of them, and not to all? And where a negotiable
security due by one firm is indorsed to another firm, or a
debt is due in any other form by one firm to another, and
one of the individuals is a partner in both firms, no action
can be maintained for the debt, for no one can be interested
as a party on both sides of the record.’ If business is carried
on in the names of several persons, who in fact are not part-
ners, the entire interest being in one only, he may sue alone;
but he must distinctly prove that the others were not his
partners ;* to prove which they are competent witnesses.®
On the other hand, if an express contract is made with one
alone, he may maintain an action upon it in his own name

 

in. the latter a right of action for such balance, unless the assent of the debtor
is proved. Armsby v. Farnham, 16 Pick. 318.

1 Peas v. Hirst, 10 B. & C. 122; Ord v. Portal, 3 Campb. 239; Ege v.
Kyle, 2 Watts, 222; McGregor v. Cleveland, 5 Wend. 475.

2 Rordasnz v. Leach, 1 Stark. 446; Machel v. Kinnear, Id. 499.

3 Bosanquet v. Wray, 6:Taunt. 597; Mainwarring v. Newman, 2 B. & P,
120; Moffatt v. Van Millingen, Id. 124,n. The purchase of such a bill or
note would be regarded ‘as payment of it, for account of the partner in
question. Ibid. And the giving of such a security would seem on the same
principle, to amount only to evidence of a similar payment. [The joint and
several note of a partnership is not extinguished by its transfer to another
firm composed in part of the same persons; the latter firm may negotiate
the note to third persons. Fulton v. Williams, 11 Cush. 108,110. Ifa note
is given by a firm to one of its members, he cannot sue it in his own name,
but he may indorse it, and his indorsee may sue; and if one partner gives
his note to the firm, they cannot sue it, but their indorsee may bring an ac-
tion thereon. Ibid. Little v. Rogers, 1 Met. 108; Thayer v. Buffum, 11
Ib, 398; Davis v. Briggs, 39 Maine, 304; Smith. Lusher, 5 Cow. 688. And
one partner, even after the dissolution of the firm, may indorse the note of
the firm payable to himself, given before the dissolution. Temple v. Seaver,
11 Cush. 314; Quinn v. Fuller, 7 Ib. 224; Decreet v. Burt, Ib. 551.]

4 Teed v. Elworthy, 14 East, 210; Atkinson v. Laing, 1 D. & Ry. Cas.
16; Davenport v. Rackstrow, 1 C. & P. 89.

5 Parsons v. Crosby, 5 Esp. 199; Glossop v. Colman, 1 Stark. 25.

45 *
534 LAW OF EVIDENCE. [PART IV.

only, though others, whose names are not mentioned in the
contract, are interested in it jointly with himself, and might
well have joined in the action.2 If the name of the firm has
remained a long time the same, but the partners have been
changed, parol evidence is admissible in an action upon a
contract made in the name of the firm, to show that the
plaintiffs were in fact the real members of the firm at the
time of making the contract.

§ 479. The usual proof of partnership is by the evidence
of clerks, or other persons, who know that the parties have
actually carried on business as partners. Though the part-
nership was constituted by indentures, or other writings, it
is ordinarily not necessary, in an action between the partners
and third persons, to produce them.t And if the witness
called to prove a partnership in fact, is unable to recollect
the names of all who are members of the firm, his memory
may be assisted by suggesting them.

§ 480. In defence of an action of assumpsit brought by
partners, the defendant may show any separate agreement
between him and one of the plaintiffs, which would have

 

1 Lloyd v. Archbowle, 2 Taunt. 324; Mawman ». Gillett, Id. 325, n.;
[Bank of St. Mary v. St. John, 25 Ala. 366.]

2 Leveck v. Shaftoe, 2 Esp. 468; Skinner v. Stocks, 4 B. & Ald. 437;
Lord v. Baldwin, 6 Pick. 348. But proof that the contract was expressly
made with one alone, upon his assertion, that the subject-matter was his sole
property, will be conclusive to defeat an action on that contract by all the
partners. Lucas v. De la Cour, 1 M. & S. 249.

3 Moller v. Lambert, 2 Campb. 548. [If the note of the firm is given by,
one copartner for his individual debt, during the continuance of’ the part- -
nership, and the other copartner with a full knowledge of the fact, revog-
nizes and ratifies the note so given asa partnership note, it thereby binds
the firm. Wheeler v. Rice, 8 Cush. 205, 208; Sweetser v. French, 2 Ib. 809;
Gansevoort .v. Williams, 14 Wend. 139, 140; Bank of Ky. e. Brooking, 2
Littell, 41. Mere knowledge on their part is no proof of assent. Elliott v.
Dudley, 19 Barb. 326.]

4 Alderson v. Clay, 1 Stark. 405; Collyer on Partn. 406; [Dutton v.
Woodman, 9 Cush. 255.]

5 Ante, Vol. 1, § 435; Acerro v. Petroni, 1 Stark. 400.
PART IV.] PARTNERSHIP. 535

been available if made by all; such as an agreement by one
to provide for the payment of a bill, accepted by the defend-
ant for the accommodation of the firm;! or an agreement
with the drawer of a bill, by A, a partner in the house of A
and B, to provide for the payment of the bill, which was
negotiated by them to the firm of A & C,in which also he
was a partner.? So where the defendant has allowed to one
partner the amount of the partnership debt, on settlement of
his private account against the partner, if done in good faith,
it is a valid defence against the firm. So, if, in the particu-
lar transaction, the conduct of one partner has been fraudu-
lent, as, if he sell and deceitfully pack goods in a foreign
. country, to be imported in fraud of the revenue laws, it is a
good defence to an action by the firm for the price, though
his partners were ignorant of the fraud.

 

1 Richmond v. Heapy, 1 Stark. 202; Sparrow v. Chisman, 9 B. & C. 241;
Jones v. Yates, 9 B. & C. 532.

2 Jacaud v. French, 12 East, 317.

3 Henderson v. Wild, 2 Campb. 561. [It is also a valid defence against
the firm, though the partner act fraudulently, if the creditor act in good faith.
Homer v. Wood, 11 Cush. 62, where the authorities are reviewed; Greeley
v. Wyeth, 10 N. H.15; Richmond v. Heapy, 1 Stark. 202 ; Jones v. Yates,
9 B.& C. 532; Wallace v. Kelsall, 7 Mees. & Welsb. 264, 273; Story on
Partn. § 238 ; Collyer on Partn. § 643. But see Purdy v. Powers, 6 Barr,
392.]

4 Biggs v. Lawrence, 3 T. R. 454. [One partner cannot maintain an ac-
tion at law on the covenants in the articles of copartnership to recover dam-
ages of his copartner for neglect of the partnership business, while there is
a considerable amount due from him to his copartner, and the debts due by
and to the firm, the burden of which is to be borne, and the benefit enjoyed,
by the partners in certain proportions, are not all settled. Capen v. Barrows,
1 Gray, 376, 382. In such an action, if there are several partners, all must
join against the delinquent member of the firm. Ibid. No action at law
can be maintained on a joint agreement by the plaintiffs and defendants,
who were all members of the same joint-stock company, formed to purchase
a vessel of the plaintiffs. Myrick v. Dame, 9 Cush. 248 ; Green v. Chap-
man, 1 Williams, (Vt.) 236; Collamer v. Foster, 26 Vt. 754. Where two
persons do business under the name of one of them, a bill drawn on that
person and by him accepted, is presumed in law to bind him only and not
the firm. Mercantile Bank v. Cox, 38 Maine, 500.]
5386 LAW OF EVIDENCE. [PART IV.

§ 481. As between the parties themselves, a partnership is
constituted by a voluntary contract between two or more
competent persons to place their money, effects, labor, and
skill, or some or all of them, in lawful commerce or business,
with the understanding that there shall be a communion of
the profits thereof between them.! The proof of the part-

 

1 Story on Partn. § 2; 3 Kent, Comm. pp. 23, 24; Collyer on Partn. p. 2.
A surgeon, selling out his business, but retaining a moiety of the first year’s
net profits, for introducing his patients to his successor, and other like
services, held not a partner. Rawlinson v. Clark, 15 M. & W. 292. A pro-
prietor of a newspaper selling out, but retaining a share in the profits, held
a partner, under the circumstances of the case. Barry v. Nesham, 10 Jur.
1010. And see Pott v. Eyton, 15 Law Journ. 257, N.S. [A made with B
the following agreement in writing: “‘ Sold B on joint account with A two
thousand boxes of candles at twenty-six cents, six months from delivery ;
B to be allowed two and a half per cent. on sales; on all sales not approved
by A, B is to guaranty the same, receiving a commission of two and a half
per cent.; for one half of the sales made by B he is to pass over the paper
to A; there are to be no charges for storage; property in store to be cov-
ered by insurance by B for joint account and expense;” and the parties
acted under and in pursuance of this agreement. Held that this constituted
a sale of an undivided half of the candles by A to B, and did not make A
and B partners in regard thereto. Hawes v. Tillinghast, 1 Gray, 289. For
other cases in which the facts were held either sufficiént or insufficient to es-
tablish a partnership, see Judson v. Adams, 8 Cush. 556; Fay v. Noble, 7 Ib.
188 ; Trowbridge v. Scudder, 11 Ib. 83; Denny ». Cabot, 6 Met. 82; Brad-
ley v. White, 10 Met. 303; Holmes v. Porter, 39 Maine, 157; Knowlton v.
Reed, 38 Ib. 246; Banchor »v. Cilley, Ib. 553 ; Ripley v. Colby, 3 Foster, (N.
H.) 438; Newman v. Bean, 1 Ib. 98; Belknap v. Wendell, 1 Ib.175; Hatch
v. Foster, 1 Williams, (Vt.) 515; Penniman v. Munson, 26 Vt.164; Mason
v. Potter, Ib. 722; Noyes v. Cushman, 25 Ib. 390; Brockway v. Burnap, 16
Barb. 309; Catskill Bank v. Gray, 14 Ib. 471; Vassor v. Camp, Ib. 341;
Hodgman v. Smith, 13 Barb. 302; Smith v. Wright, 5 Sandf.113; Wads-
worth v. Manning, 4 Md. 59; Peirson v. Steinmyer, 4 Rich. 309; Blue v.
Leathers, 15 Ill. 31; Stoallings v. Baker, 15 Mis. 481; Tibbatts v. Tibbatts,
6 McLean, 80; Stocker v. Brockelbank, 5 Eng. Law & Eq. 67; Peel v.
Thomas, 29 Ib. 276.

Tf the several proprietors of different portions of a public line of travel,
by agreement among themselves, appoint a common agent at each end of
the route to receive the fare and give through-tickets, this does not of itself
constitute them partners as to passengers who purchase through-tickets, so
as to render each one liable for losses occurring on any portion of the line.
Ellsworth v. Tartt, 26 Ala. 788. See also. Briggs v. Vanderbilt, 19 Barb.
222. See ante, § 210-222, and notes. ]
’

PART Iv.] PARTNERSHIP. 587

nership, therefore, will be made by any competent evidence
of such an agreement. If it is contained in written articles,
these, in an action between the partners, must be produced
or proved; and the parties themselves will be governed by
their particular terms, but their precise limitations will not
affect strangers, to whom they are unknown

§ 482. In favor of third persons, and against the partners
themselves, the same agreement ought generally to be estab-
lished by such competent evidence as is accessible to stran-
gers. Where there is a community of interest in the prop-
erty, and also a community of interest in the profits, there is
a partnership. If there is neither of these, there is no part-
nership. If one of these ingredients exist, without the pres-
ence of the other, the general rule is, that no partnership will
be created between the parties themselves, if it would be con-
trary to their real intentions and objects. And none will be
created between themselves and third persons, if the whole
transactions are clearly susceptible of a different interpretation,
or exclude some of the essential ingredients of partnership.?

 

1 Winship v. United States Bank, 5 Peters, 529; Gill v. Kuhn, 6 S. & R.
833; Churcliman v. Smith, 6 Whart. 146; Tillier ». Whitehead, 1 Dall. 269;
United States Bank v. Binney, 5 Mason, 176; [Capen v. Barrows, 1 Gray,
376.]

2 Story on Partn. § 30. This learned author proceeds to discuss the dis-
tinction between an agreement for a compensation proportioned to the prof-
its, and an agreement for an interest in such profits, so as to entitle him to
an account as a partner, and then observes as follows: “ Admitting, however,
that a participation in the profits will ordinarily establish the existence of a
partnership between the parties in favor of third persons, in the absence of
all other opposing circumstances, it remains to consider, whether the rule
ought to be regarded as anything more than mere presumptive proof thereof,
and therefore liable to be repelled, and overcome by other circumstances,
and not as of itself overcoming or controlling them. In other words, the
question is, whether the circumstances, under which the participation in the
profits exists, may not qualify the presumption, and satisfactorily prove, that
the portion of the profits is taken, not in the character of a partner, but in
the character of an agent, as a mere compensation for labor and services. If
the latter be the true predicament of the party, and the whole transaction
admits, nay, requires, that very interpretation, where is the rule of law which
538 LAW OF EVIDENCE. [PART Iv.

The cases, in which a liability as partners as to third persons
exists, have been distributed into five classes. First, where

 

forces upon the transaction the opposite interpretation, and requires the
Court to pronounce an agency to be a partnership, contrary to the truth of
' the facts and the intention of the parties ? Now, itis precisely upon this very
ground, that no such absolute rule exists, and that it is a mere presumption
of law, which prevails in the absence of controlling circumstances, but is con-
trolled by them, that the doctrine in the authorities alluded to is founded.
If the participation in the profits can be clearly shown to be in the character
of agent, then the presumption of partnership is repelled. In this way the
law carries into effect the actual intention of the parties, and violates none
of its own established rules. It simply refuses to make a person a partner,
who is but an agent for a compensation, payable out of the profits; and
there is no hardship upon third persons, since the party does not hold him-
self out as more than an agent. This qualification of the rule (the rule itself
being built upon an artificial foundation) is, in truth, but carrying into effect
the real intention of the parties, and would seem far more consonant to jus-
tice and equity, than to enforce an opposite doctrine, which must always
carry in its train serious mischiefs, or ruinous results, never contemplated
by the parties.” Id.§ 38. And after citing and commenting on the princi-
pal cases upon this subject,-he concludes thus: — These may suftice as illus-
trations of the distinction above alluded to. The whole foundation, on which
it rests, is, that no partnership is intended to be created by the parties inter
sese ; that the agent is not clothed with the general powers, rights, or du-
.ties of a partner; that the share in the profits given to him is not designed
to make him a partner, either in the capital stock or in the profits, but
to excite his diligence, and secure his personal skill and exertions, as an
agent of the concern, and is contemplated merely as a compensation therefor,
It is, therefore, not only susceptible of being treated purely as a case of
agency; but in reality it is positively and absolutely so, as far as the inten-
tion of the parties can accomplish the object. Under such circumstances,
what ground is there in reason, or in equity, or in natural justice, why in favor
of third persons this intention should be overthrown, and another rule sub-
stituted, which must work a manifest injustice to the agent, and has not oper-
ated either as a fraud, or a deceit, or an intentional wrong upon third per-
sons? Why should the agent, who is by this very agreement deprived of all
power over the capital stock, and the disposal of the funds, and even of the
ordinary rights of a partner to levy thereon, and an account thereof, be thus
subjected to an unlimited responsibility to third persons, from whom he has
taken no more of the funds or profits, (and, indeed, ordinarily less so,) than
he would have taken, if the compensation had been fixed and absolute, in-
stead of being contingent? If there be any stubborn rule of law, which
establishes such a doctrine, it must be obeyed; but if none such exist, then
- itis assuming the very ground in controversy to assert, that it flows from

,
PART IV. PARTNERSHIP. 5389

although there is no community of interest in the capital
stock, yet the parties agree to have a community of interest

 

general analogies or principles. On the contrary, it may be far more cor-
rectly said, that even admitting, (what, as a matter unaffected by decisions,
and to be reasoned out upon original principles, might well be doubted,) that
where each party is to take a share of the profits indefinitely, and is to bear
@ proportion of the losses, each having an equal right to act as a principal,
as to the profits, although the capital stock might belong to one only, it shall
constitute, as to third persons, a case of partnership; yet that rule ought not
to apply to cases, where one party is to act manifestly as the mere agent for
another, and is to receive a compensation for his skill and services only, and
not to share as a partner, or to possess the rights and powers of a partner.
In short, the true rule, ex @quo et bono, would seem to be, that the agreement
and intention of the parties themselves should govern all the cases. If they
intended a partnership in a capital stock, or in the profits, or in both, then,
that the same rule should apply in favor of third persons, even if the agree-
ment were unknown to them. And, on the other hand, if no such partner-
ship were intended between the parties, then, that there should be none as
to third persons, unless where the parties had held themselves out as part-
ners to the public, or their conduct operated as a fraud or deceit upon third
persons. It is upon this foundation, that the decisions rest, which affirm the
truth and correctness of the distinction already considered, as a qualification
of the more general doctrine contended for. And in this view it is difficult
to perceive, why it has not a just support in reason, and equity, and public
policy. Wherever the profits and losses are to be shared by the parties in
fixed proportions and shares, and each is intended to be clothed with the
powers, and rights, and duties, and responsibilities of a principal, either as
to the capital stock, or the profits, or both, there may be a just ground to
assert in the absence of all controlling stipulations and circumstances, that
they intend a partnership. But where one party is stripped of the powers
and rights of a partner, and clothed only with the more limited powers and
rights of an agent, it seems harsh, if not unreasonable, to crowd upon him
the duties and responsibilities of a partner, which he has never assumed, and
for which hé has no reciprocity of reward or interest. It has, therefore, been
well said by Mr. Chancellor Kent, in his learned Commentaries, that ‘to be
a partner, one must have such an interest in the profits, as will entitle
him to an account, and give him a specific lien or preference in payment
over other creditors. There is a distinction between a stipulation for a
compensation for labor proportioned to the profits, which does not make ’
a person a partner; and a stipulation for an interest in such profits, which
entitles the party to an account as a partner.’ And Mr. Collyer has given
the same doctrine in equally expressive terms, when he says, that in order
to constitute a communion of profits between the parties, which shall make
540 LAW OF EVIDENCE. [PART IV.

or participation in the profit and loss of the business or ad-
venture, as principals, either indefinitely or in fixed propor-
tions. Secondly, where there is, strictly speaking, no capital
stock, but labor, skill, and industry are to. be contributed by
each in the business, as principals, and the profits and loss
thereof are to be shared in like manner. Thirdly, where the
profit is to be shared between the parties, as principals, in
like manner, but the loss, if any occurs beyond the profit, is
to be borne exclusively by one party only. Fourthly, where
the parties are not in reality partners, but hold themselves
out, or at least are held out by the party sought to be charged,
as partners to third persons, who give credit to them accord-
ingly. Fifthly, where one of the parties is to receive an
annuity out of the profits, or as a part thereof! Wherever,
therefore, the evidence brings the case within either of these
classes, a partnership, as against the parties, will be sufli-
ciently proved. ,

§ 483. It is essential, in an action ex contractu against
partners, that the evidence of partnership should extend to
all the defendants ;? otherwise the plaintiff will be non-
suited. But the utmost strictness of proof is not required ;
for though where they sue as plaintiffs, they may well be
held to some strictness of proof, because they are conusant
of all the means whereby the fact of partnership may be
proved ; yet where they are defendants, the facts being less
known to the plaintiff, it is sufficient for him to prove, that
they have acted as partners, and that by their habit and
course of dealing, conduct, and declaration, they have in-
duced those with whom they have dealt to consider them as

 

them partners, the interest in the profit must be mutual; that is, each per-
son must have a specific interest in the profits, as a principal trader.” Id.
§§ 48, 49.

1 Story on Partn. § 54; Id. § 55-70; Collyer on Partn. ch. 1, see. 2, p.
43-56.

2 Young v. Hunter, 4 Taunt. 582. In assumpsit, the fact of partnership

is put in issue by the plea of non-assumpsit. Tomlinson v. Collett, 8 Blackf.
436.
PART Iv.] PARTNERSHIP. 541

partners.! Hence, if two persons have in many instances
traded jointly, this will be admissible evidence towards the
proof of a general partnership, and sufficient, if the instances
of joint dealing outweigh the instances of separate dealing,
to throw upon the defendants the burden of proving that it
was not such a partnership. . And though the partnership
was established by deed, yet, against the parties, it may be
proved by oral evidence of partnership transactions,? or by
the books of the firms But evidence of general reputation,
or common report of the existence of the partnership, is not
admissible, except in corroboration of previous testimony ;
unless it be to prove the fact, that the partnership, otherwise
‘shown to exist, was known to the plaintiff5

§ 484. A partnership may also be proved against the
parties, by their respective declarations and admissions,
whether verbal, or in letters, or other writings. Thus where,
upon the trial of the question of partnership, the defendants,

 

1 9 Stark. Evid. 585, 586; Evans v. Curtis, 2 C. & P. 296. If it be clear
that the party, at the time of the acts and admissions, was not a partner,
they will not render him liable for a prior debt of the firm. Saville v. Rob-
ertson, 4 T. R. 720. Nor will an admission of a partnership in one transac-
tion bind the party as a partner in another matter not connected with it.
De Berkom v. Smith,1 Esp. 29. If the articles of copartnership are produced
in evidence against the firm, it will be sufficient to prove the signatures of
those who are parties to the suit. Beach v..Vanderwater, 1 Sandf. S. C. R.
265.

2 Newnham v. Tethrington, cited in Collyer on Partn. p. 450; Etheridge
v. Binney, 9 Pick. 272. The signature of a joint note by two persons, is no
evidence of a partnership between them. Hopkins v. Smith, 11 Johns.
161. But the signature of the name of a firm, is evidence against the per-
son signing it, that he is one of the partners. Spencer v. Billing, 3 ae
312.

3 Alderson v. Clay, 1 Stark. 405; Widdifield v. Widdifield, 2 Binn. 249 ;
Allen v. Rostain, 11 8. & R. 362.

4 Richter v. Selin, 8 S. & R. 425; Champlin v. Tilley, 3 Day, 306; Hill
v. Manchester Waterw. Co. 2 N. & M. 573.

5 Allen v. Rostain, 118. & R. 362; Whitney v. Sterling, 14 Johns. 215;
Bernard v. Torrance, 5 Gill & Johns. 383. See also Gowan v. Jackson, 20
Johns. 176; Halliday v. McDougall, 20 Wend. 81; Brand v. Ferriday, 16
Louis. R. 296; [Carlton v. Ludlow Woollen Mills, 1 Williams, (Vt.) 496.]

VOL. II. 46
\

542 LAW OF EVIDENCE. [PART Iv.

in order to render a witness competent, executed a release to
him, the release was permitted to be read by the plaintiff, as
competent evidence in chief, to establish the partnership.t
So also, an entry at the custom-house, by one partner in the
name of the firm, is admissible, though not conclusive, evi-
dence for the same purpose.2 In other cases, the act, decla-
ration, or admission of one person is not admissible in evi-
dence to establish the fact that others are his partners,
though it is ordinarily sufficient to prove it as against him-
self? But if, in an action against three as partners, two have
acknowledged the existence of articles of copartnership,
which the third, on due notice, refuses to produce at the
trial, the Jury will be warranted in finding the fact of part-
nership upon this evidence alone.t In one case, where the
issue of partnership was- raised: by a plea in abatement, for
the non-joinder of parties as defendants, the admission of
liability as a partner, by one not joined in the suit, being
good in an action against him, was held to be also receivable
on this issue, to prove him a partner?

§ 485. The proof of partnership may be answered by the
defendant, by evidence of an arrangement between the par-
ties, by which either the power of the acting partner to bind
the firm, or the defendant’s liability on the contracts of the

 

1 Gibbons v. Wilcox, 2 Stark. 43. And see Parker v. Barker, 1 B. & B.
9. Declarations made to a third person are admissible, though not made in
the presence of the other parties. Shott v. Strealfield, 1 M. & Rob. 8.

2 Ellis v. Watson, 2 Stark. 4538.

3 Burgue v. De Tastet, 3 Stark. 53; Flower v. Young, 3 Campb. 240;
Tinkler v. Walpole, 14 East, 226; Cooper v. South, 4 Taunt. 802; Whitney
v. Ferris,10 Johns. 66; Tuttle v. Cooper, 5 Pick. 414; Robbins v. Willard,
6 Pick. 464; McPherson v. Rathbone, 7 Wend. 216. See ante, Vol. 1, §
177; McCutchin v. Bankstone, 2 Kelly, 244; Grafton Bank v. Moore, 18 N.
Hamp. 99; [Allcott v. Strong, 9 Cush. 523; Dutton v. Woodman, Ib. 255;
Chase v. Stevens, 19 N. H. 465.]

4 Whitney v. Stirling, 14 Johns. 215.

5 Clay v. Langslow, 1 M. & Malk. 45. Sed qucere, and see ante, Vol. 1, §
395; Miller v. M’Clenachan, 1 Yeates, 144. [The admissions of one partner,
made after the dissolution of the firm, are not admissible against the other
parties. Hogg v. Orgill, 34 Penn. 844.]
PART LV.| PARTNERSHIP. 543

firm, was limited, qualified, or defeated; provided the plain-
tiff had previous and express notice. The defendant may
also show, that he was not a partner in the particular trade
in which the transaction took place, and that the plaintiff
knew the fact ;? or, that the partnership was previously dis-
solved ; or, that he had notified the plaintiff not to deal with
his partner, without his own concurrence.

§ 486. In an action against the administrators of a de-
ceased partner, the surviving partner is a competent witness
to prove the partnership ; for he has no interest in the matter,
such anaction not being maintainable at law.t But in an
action brought by the surviving partner as such, the widow
of his deceased partner is not a competent witness for him,
her testimony going to increase the fund, of which she is
entitled to a distributive share6 A dormant partner is a com-
petent witness for his partner in an action by the latter, if he
releases his interest in the subject of the suit.

 

1 Minnett v. Whitney, 5 Bro. P. C. 489; Collyer on Partn. 214, 456; Ex
parte Harris, 1 Madd. 583; Alderson ». Clay, 1 Campb. 404.

2 Jones v. Hunter, Dan. & Lloyd, 215; Collyer on Partn. 456.

3 Willis v. Dyson, 1 Stark. 164; Ld. Galsray v. Matthew, 10 East, 264.

4 Grant v. Shutter, 1 Wend. 148.

5 Allen v. Blanchard, 9 Cowen, 631.

6 Clarkson v. Carter, 3 Cowen, 84.
544 LAW OF EVIDENCE. [PART IV.

PATENTS.

§ 487. Tue remedy for the infringement of a patent right,
both by statute and Common Law, is by an action on the
case From the nature of the action and the tenor of the

 

1 Stat. U. S. 1836, ch. 857, § 14; 1 Chitty on Plead. 131. The declara-
tion for the infringement of this right is given by Mr. Phillips in his excel-
lent Treatise on the Law of Patents, p. 520, as follows: “ To answer to A
of B, in the county of S, in the district of , manufacturer, in a plea of
trespass on the case, for that the plaintiff was the original and first inventor
[or discoverer] of a certain new and useful art [machine, manufacture, com-
position of matter, or improvement on any art, machine, &c., taking the
words of the statute most applicable to the subject of the invention] in the
letters-patent hereinafter mentioned and fully described, the same being a
new and useful [here insert the title or description given in the letters-patent]
which was not known 6r used before his said invention [or discovery], and
which was not, at the time of his application for a patent as hereinafter
mentioned, in public use or on sale with his consent or allowance; and the
plaintiff, being so as aforesaid the inventor [or discoverer] thereof, and being
also a citizen of the United States [if the fact is so],1 on the —— day of. 4
[here insert the date of the patent] upon due application therefor, did obtain
certain letters-patent therefor in due form of law under the seal of the Patent
Office of the United States, signed by the Secretary of State, and counter-
signed by the Commissioner of Patents of the United States, bearing date the
day and year aforesaid, whereby there was secured to him, his heirs, admin-

 

 

1 “Tt has been suggested, in a preceding part of this work, p. 408,” (says Mr. Phil-
lips in his note in this place,) “ that the citizenship of the patentee need not be proved
by the plaintiff, and, if so, it need not be averred. This will, however, depend upon
the construction that shall be given to the 16th section of the act of 1836, c. 357, by
which, if the patentee be an alien, the defendant is permitted to give matter in evi-
dence, tending to show that the patentee ‘has failed and neglected for the space of
eighteen months from the date of the patent to put and continue on sale to the public,
on reasonable terms, the invention or discovery.’ The position referred to in p. 408,
assumes, that the burden on this point is, in conformity to the language of the statute
in the first instance, on the defendant. But to go on the safer side, the above form of
declaring assumes the burden to be on the plaintiff to aver and prove, in the first
instance, that the patentee is a citizen of the United States, or, if an alien, and the
eighteen months have expired before the date of tle writ, that he has put and con-
tinued the invention on sale in the United States on reasonable terms.”’
PART IV.] PATENTS. 545

declaration, as stated below, it is apparent that the plaintiff,
under the general issue, may be required, and therefore should
be prepared to prove, (1.) the grant-and issuing of the letters-
patent, together with the specification and the assignment to

’

 

istrators, executors, or assigns,! for the term of fourteen years from and after
the date of the patent, the full and exclusive right and liberty of making,
using, and vending to others to be used, the said invention, [machine, im-
provement, or discovery,] as by the said letters-patent, in Court to be pro-
duced,? will fully appear. And the plaintiff further says, that from the
time of the granting to him of the said letters-patent, hitherto, he has made,
used, and vended to others to be used, [or he has made, or has used, or has
vended to others to be used, as the case may be,] the said invention, [ma-
chine, improvement, or discovery,] to his great advantage and profit, [or
if he has not made, used, or vended, then, instead of the above averments,
may be substituted after the word ‘hitherto, ‘the said exclusive right has
been and now is of great value to him, to wit, of the value of $ .’]4 Yet
the said D well knowing the premises, but contriving to injure the plaintiff,5

1“ Act of 4th of July, 1886, ch. 357, § 5.

2 Which the plaintiff brings here into Court. Chit. P]. Vol. 2, p. 795, (5th ed.)

8“ The English precedents here state the making and filing of the specification, the
assignment of the patent, and the recording of the assignment, if the action be in the
name of an assignee, or if an assignee of part of the right is joined.

“If the patentee is an alien, and the counsel chooses to declare very cautiously, if
eighteen months have expired from the date of the patent, he may here introduce the
averment, that within eighteen months from the date of the patent, namely, on, &c.,
at, &c., he (or his assignees) put the invention on sale in the United States, on reason-
able terms, and from that time always afterwards to the time of purchasing the writ,
he (or they, or he and they) had continued the same on public sale in the United States,
on reasonable terms.

4“ The principle upon which these averments are made is the same as that upon
which, in an action for trespass ‘upon personal property, the value of the property is
alleged, by way of showing that it was a thing in respect to which the plaintiff might
sustain damage. Mr. Gould says of this averment, ‘ As he (the plaintiff) is not obliged
to state the true value, the rule requiring it to be stated would seem to be of no great
practical use.’ Gould’s Pl. ch. 4, § 87, p. 187. Mr. Chitty says, the above averments
as to profit, by making, using, and vending, are sometimes omitted. The propriety of
making the averment of the value seems to depend upon the question, whether the
allegation of ownership of an article or species of personal property, or interest in it,
and possession of it, imports a value to the plaintiff, without specifically alleging its
value; for if it does, then w ground of action distinctly appears, without any such
specific allegation.

5 “¢ Contriving and wrongfully intending to injure the plaintiff, and to deprive him
of the profits, benefits, and advantages, which he might and otherwise would have
derived and acquired from the making, using, exercising, and vending of the said
invention, after the making of the said letters-patent, and within the said term of

‘fourteen years in said letters-patent mentioned.’’’ hit. Pl. (6th ed.) Vol. 2, p. 766,
46 *
546 LAW OF EVIDENCE. [PART IV.

him, if he claims as assignee; (2.) that the invention was
that of the patentee, and was prior to that: of any other per-
son; (3.) that it is new and useful, and has been reduced to
practice ; (4.) that it has subsequently been infringed by the
defendant ; and the damages, if any, beyond a nominal sum,
are claimed.

§ 488. (1.) The letters-patent, to which, in the United
States, a copy of the specification is annexed as a part
’ thereof, are proved either by the production of the originals,
or by copies of the record of the same, under the seal of the
patent-office, and certified by the Commissioner of Patents,
or, if his office be vacant, by the chief clerk If the patent

 

did on the [some day after the date of the patent] and at. divers times before
and afterwards, during the said term of fourteen years, mentioned in said
letters-patent, and before the purchase of this writ, at C., in the county of
M., in the said district of , unlawfully and wrongfully, and without the
consent or allowance, and against the will of the plaintiff, make [use and
vend to others to be used, or did make, or did use, or did vend to others to
be used, as the case may be] the said invention, [machine, improvement, or
discovery,] in violation and infringement of the exclusive right so secured to
the plaintiff by said letters-patent as aforesaid, and contrary to the form of
the statutes of the United States in such case made and provided, whereby
the plaintiff has been greatly injured, and deprived of great profits and ad-
vantages, which he might and otherwise would have derived from said inven-
tion; and has sustained actual damage to the amount of , and, by force
of the statute aforesaid, an action has accrued to him, to recover the said
actual damage, and such additional amount, not exceeding in the whole
three times the amount of such actual damages, as the Court may see fit to
order and adjudge. Yet the said D, though requested, has never paid the
same, or any part thereof, to the plaintiff, but hath refused, and yet refuses
so to do. ‘

1 Stat. U. S. 1836, ch. 357, §§ 4, 5. By this act, no letters-patent are to"
be issued until the specification is filed; which it isthe duty of the clerk to
enroll ; and therefore no particular evidence of the enrolment is required on
the part of the plaintiff. But in England, where the letters-patent are issued
before the specification is filed, the party is bound to see to the enrolment of
his specification within a limited time, and therefore is bound to show that
this requirement has been complied with. Ex parte Beck, 1 Bro. Ch. R.
578; Ex parte Koops, 6 Ves. 599; Watson v. Pears, 2 Campb. 294.

 

 

1 Act of 4th of July, 1886, ch. 857, § 14.”
PART Iv.] PATENTS, O47

is for an improvement, and the specification refers to the
former patent, without which it is not sufficiently clear and
intelligible, the former patent with its specification must also
be produced! Where the proof is by an exemplification, it
must be of the whdle record, and not of a part only. The
drawings, if any, must be produced, whenever they form part
of the specification.

§ 489. As letters-patent are not granted as restrictions
upon the rights of the community, but to promote science
and the useful arts,? the Courts will give a liberal construc-
tion to the language of patents and specifications, adopting
that interpretation which gives the fullest effect to the nature
and extent of the claim made by the inventor3 The mean-
ing is a question for the Court, the words of art having been
interpreted by the Jury. If there is any obscurity in them,
reference may be had to the affidavit of the patentee, made
and filed prior to the issuing of the patent. No precise
form of words is necessary, provided their import can be
clearly ascertained by fair interpretation, even though the ex-
pressions may be inaccurate. But if the claim is of an
abstract principle or function only, detached from machinery,
it is void.’

 

1 Lewis v. Davis,3 C. & P. 502; Phillipson Patents, pp. 401, 402; [Kittle
v. Merriam, 2 Curtis, C. C. 475; Parker v. Stilesp 5 McLean, 44.]

2 Blanchard v. Sprague, 3 Sumn. 535. »

3 Ryan v. Goodwin, 3 Sumn. 514. Where a patent is granted for a term
of years, the day of the date of the patent is reckoned inclusive. Russell v.
Ledsman, 9 Jur. 557, 558; Parker v. Stiles, 5 McLean, 44; Winans v.
Denmead, 15 How. U. 8. 330.]

4 Neilson v. Harford, 8 M. & W. 806.

5 Pettibone v. Derriger, 4 Wash. 215.

6 Wyeth v. Stone, 1 Story, R. 278; Minter v. Mower, Webst. Pat. Cas.
138, 141; 6 Ad. & El. 735, S. C.; Derosne v. Fairie, Id. 154,157; 5 Tyrw.
393; 1 M. & Rob. 457, S. C. [And the’ specification is to be construed
according to the true import of the words used, rather than by their gram-
matical arrangement. Allen v. Hunt, 6 McLean, 303.]

7 Blanchard v. Sprague, 3 Sumn. 535; Wyeth v. Stone, 1 Story, R. 278;
Lowell v. Lewis, 1 Mason, 187; Earle v. Sawyer, 4° Mason, 1; Phillips on
548 LAW OF EVIDENCE. [PART Iv.

§ 490. The plaintiff must give some evidence of the suffi-
ciency of the specification, if denied; such as, the evidence
of persons of science, and workmen, that they have read the
specification, and can understand it, and have practised the
invention according to it; and such evidence will be suffi-
cient, unless the defendant can show, that persons have
been misled by the specification, or have incurred expense
in attempting to follow it, and were unable to ascertain
what was meant.!. The sufficiency of the specification, in
matters of description, is a question for the Jury2 If a
whole class of substances be mentioned as suitable, the
plaintiff must show, that each and every of them will suc-
ceed ; for otherwise the difficulty of making the instrument
will be increased, and the public will be misled.2 But if the
title describes the patent to have been granted for improve-
ments, in the plural, whereas the specification discloses only
one improvernent, it is no variance.* The object of the spe-
cification is, that after the expiration of the term, the public
shall have the benefit of the discovery.6 It must be under-
stood according to the acceptation of practical men. at the
time of its enrolment; and be such as, taken in connection
with the drawings, if any, to which it refers, will enable a
skilful mechanic to perform the work.® If it contain an

 

Patents, pp. 95-100, 109-113; Godson on Patents, ch. iii. sect. v.; [Smith v.
Ely, 5 McLean, 76.]

1 Turner v. Winter, 1 f. R. 602; Cornish v. Keene, 3 Bing. N. C. 570;
4 Scott, 337,5.C. See, on the requisites of a sufficient specification, Phil-
lips on Patents, ch. 11; Godson on Patents, ch. 4. See also Bickford v.
Skewes, Webst. Pat. Cas. 219; Househill Co. v. Neilson, Id. 692.

2 Walton v. Potter, Webst. Pat. Cas. 595; [Battin v. Taggart, 17 How.
U. 8. 74; Hogg v. Emerson, 11 Ib. 587.]

3 Bickford v. Skewes, 6 Jur. 167; 1 Gale & D. 786, 8. C.

4 Nickels v. Haslam, 7 M. & G. 378.

5 Liardet v. Johnson, Bull. N. P. 76; Newberry v. James, 2 Meriv. 446.

6 Crossly v. Beverly, 9 B. & C.63; 3 C. & P. 513, S$. C.; Bloxam »v.
Elsee, 1 C. & P. 558; 6 B. & O. 169; Morgan v. Seaward, 2 M. & W. 544.
[Lhe words “or the equivalent therefor” in a claim, cannot apply to another
invention differing in arrangement and principle, but equivalent in result.
The words embrace only colorable imitations. McCormick v. Manny, 6
McLean, 539.]
PART IV.] PATENTS. 549

untrue statement in fact, which, if literally acted upon by
a competent workman, would mislead him, and cause the
experiment to fail, it is bad, even though a competent
workman, acquainted with the subject, would perceive and
in practice correct the error.

§ 491. Besides the formal proof of the assignment, where
the plaintiff claims as assignee, he must show that the assign-
ment has been recorded in the patent-office, before he can
maintain any suit, either at law or in equity, either as sole or
joint plaintiff, at least as against third persons.*

§ 492. (2.) The next step in the plaintiff’s proof is to show,
that the invention is original, and his own, and prior to any
other. Of this point, as the applicant for a patent is required
to make affidavit of the fact before the patent is issued, the
possession of the patent has been held primé facie evidence,
in a scire facias for its repeal;* and it is now held, that the
oath of the patentee, made diverso intuitu, that he was the
true and first inventor, may be opposed to the oath of a wit-
ness whose testimony is offered to the contrary, in an action
for infringement of the right.t. The person who first suggests

 

1 Neilson v. Harford, 8 M. & W. 806. [In construing the specification
of claim in letters-patent, the entire specification and drawings are to be
examined, and though there is an error in showing how a particular element
enters into the combination claimed, if the residue of the specification and
the drawing afford means to correct this mistake, it does not avoid the let-
ters-patent. Kittle v. Merriam, 2 Curtis, C. C. 475.]

2 Wyeth v. Stone, 1 Story, R. 273. [An invention may be assigned as
well before as after the application for a patent, but the patents must be ap-
plied for and issued in the name of the inventor, and when obtained it will
enure to the benefit of the assignee. Rathbone v. Orr, 5 McLean, 131. It
seems that a license to run a patented machine, not being considered a per-
sonal privilege, is assignable. Wilson v. Stolly, 5 McLean, 1.]

3 Stearns v. Barrett, 1 Mason, 153. And see Minter v. Wells, Webst.
Pat. Cas. 129; 5 Tyrw. 163. On the same principle it has been held in
England, irrespective of any oath of the party, that the introducer is primé
facie the inventor. Minter v. Hart, Webst. Pat. Cas. 131.

4 Alden v.. Dewey, 1 Story, R. 336; Ante, Vol. 1, § 852; Woodworth v.
Sherman, 1 Story, R. 171.
550 LAW OF EVIDENCE. [PART IV.

the principle, is the true and first inventor,! provided he has
also first perfected and adapted the invention to use; for
until it is so perfected and adapted to use, it is not patent-
able2 In a race of diligence between two independent and
contemporaneous inventors, he who first reduces his inven-
tion to a fixed and positive form, has the priority of title to
a patent therefor. But if the first inventor is using reason-
able diligence in adapting and perfecting his invention, he will
have the prior right, notwithstanding a second inventor has
in fact first’ perfected the same, and first reduced it to practice
in a positive form. The language of the statute,t “not
known or used by others before his or their discovery thereof,”
does not require that the invention should be known or
used by more than one person, but merely indicates that the
use should be by some other person or persons than the
patentee5

§ 493. (3.) It must also be shown by the plaintiff, that the
invention is new and useful, and that it has been reduced to
practice’ The fact of novelty does not necessarily follow
from the fact of its‘invention by the patentee; for there may
have been several inventors of the same thing, independent
of each other. But the question of novelty, in our practice,
can hardly arise upon opening the plaintiff’s case, inasmuch
as the patent itself, issued as it is upon the oath of the ap-
plicant, that the invention is new, seems to be primd facie

 

1 Minter v. Hart, Webst. Pat. Cas. 131.

2 Reed v. Cutter, 1 Story, R. 590; Bedford v. Hunt, 1 Mason, 302;
Woodcock v. Parker, 1 Gallis. 488; [Thomas v. Weeks, 2 Paine, C. C. 92;
Allen v. Hunter, 6 McLean, 303; Jn re Lowe’s Patent, 35 Eng. Law and
Eq. 325.]

3 Ibid. See, as to the Novelty and Originality of Invention, Phillips on
Patents, pp. 65, 66, 150-168 ; Godson on Patents, p. 36-50.

4 Stat. U. S. 1886, ch. 357, § 6.

5 Reed v. Cutter, 1 Story, 590.

6 The facts being undisputed, the question whether the invention is new
is for the Court. Morgan v. Seaward, 2 M. & W. 544; Webst. Pat. Cas.
Li.
PART IY.] PATENTS. 551

evidence of that fact. It is sufficient under the statute of
the United States, though it is otherwise in England and
France, if it appears that the thing in question was not
known or used before the invention thereof by the patentee,
though it may have been used prior to the date of the patent.?
Nor is it necessary to the validity of the patent, that any of
the ingredients should be new or unused before for the pur-
pose; the true question being, whether the combination of
them by the patentee is substantially new?

§ 494. The question of utility is a question for the Jury;
who have frequently found, that all that was new in a patent
was immaterial or useless. It will be sufficient, however, if
the amount of invention and of utility, taken together, be
considerable. Novelty may frequently exist without utility;
but great utility cannot be conceived to exist without nov-
elty. Hence great utility does of itself, for all practical pur-
poses, constitute novelty; and the latter may be assumed
wherever the former is proved to exist in any degree. Ordi-
narily, both may be proved by the testimony of persons well
conversant with the subject, to the effect, that they had never
‘ seen or heard of the invention before, and that the public
had given large orders for the article, or that licenses had
been taken for the exercise of the right.6 If the invention

 

1 Phillips on Patents, pp. 406, 407; [Parker v. Stiles, 5 McLean, 44.]

2 Td. 150-164, 407. :

3 Ryan v. Goodwin, 3 Sumn. R. 514; [Newton v. Vaucher, 11 Eng. Law
& Eq. 589; Electric Telegraph Co. v. Brett, 4 Ib. 347; Bush v. Fox, 26
Th. 464.]

4 By “ useful ” is meant, not as superior to all other modes now in prac-
tice, but as opposite to frivolous or mischievous inventions, or, inventions
injurious to the moral health or good order of society. Lowell v. Lewis, 1
Mason, 182; Bedford v. Hunt, Id. 802. [Upon the question of the utility
of an invention, courts are not rigid; the patent raises the presumption of
utility, and unless the invention be shown to be absolutely frivolous and
worthless the patent is valid. Parker v. Stiles, 5 McLean, 44; Manny v.
Jagger, 1 Blatch. C. C. 372.]

5 Webster on Patents, pp. 10, 11, 30; Cornish v. Keene, 3 Bing. N. C.
570; 4 Scott, 337, 8. C.; Galloway v. Bleaden, Webst. Pat. Cas. 526; 1 M.
552 LAW OF EVIDENCE. [PART Iv.

has never gone into general use, or has never been pursued,
it is a presumption against its utility

§ 495. The plaintiff must also show, that the invention
has been reduced to practice, and that it effects what the
specification professes, and. in the mode there described.
For the thing to be patented is not a mere elementary prin-
ciple, or intellectual discovery, but a principle put in practice,
and applied to some art, machine, manufacture, or composi-
tion of matter.

§ 496. (4.) The plaintiff, lastly, must prove the infringe-
ment of his right by the defendant, before the commencement
of the action, together with his damages, if he claims any
beyond a nominal sum. On the point of infringement, the
presumption is in favor of the defendant. The statute
secures to the patentee “the exclusive right of making,
using, and vending to others to be used, the invention or
discovery.”® It will be sufficient, therefore, to prove the
' making of the thing patented, for use or sale, though the
' defendant has never either used or sold itt In the proof of

 

‘& G. 247. And see Hill v. Thompson, 8 Taunt. 375; Holt, Cas. 636; Earle
v. Sawyer, 4 Mason, 6.

1 Morgan v. Seaward, 2 M. & W. 544; 1 Jur. 527; Minter v. Mower,
6 Ad. & El. 735 ; Simister’s patent, Webst. Pat. Cas. 723.

2 Earle v. Sawyer, 4 Mason, 1, 6, per Story, J.; Phillips on Patents, ch.
7, § 8, p. 109-112, 409; [Goodyear v. Day, 2 Wallace, Jr. 288; Parkhurst
v. Kinsman, 1 Blatch. C. C. 488.]

3 Stat. 1836, ch. 357, § 5. Merely exhibiting for sale is no infringement.
Minter v. Williams, 4 Ad. & El. 251; 5 Nev. & M. 647, S. C.

4 Whittemore v, Cutter, 1 Gall. 429. In Boyce v. Dorr, 3 McLean, 528,
it was held, that if the maker was ignorant that it had been patented, none
but nominal damages should be given. And it has been held in the Court of
Exchequer, that if a. patent has been infringed unintentionally, the patentee
is not entitled to any redress. But this doctrine has been disapproved.
See Heath v. Unwin, 15 Sim. 552; 11 Jur. 420; 16 Law J. 883, Chan. [A
sale of the thing patented to an agent of the patentee employed by him to
make the purchase, on account of the patentee, is not per se an infringe-
ment, although accompanied by other circumstances it may be evidence of
an infringement. Byam v. Bullard, 1 Curtis, C. C. 100.]
PART Iv.] PATENTS. 508

using, which is a matter of great delicacy, a distinction is to
be observed between the use of an article about or upon
which a patented material or machine has been employed,
and the act of applying such material or machine. It is the
latter only, which is a violation of the right. Thus, if a car-
riage has been finished with patented paint, itis the builder,
and not the purchaser, who violates the right of the patentee.!
So, where a quantity of wire watch-chains were made to
order, in the manufacture of which a patented instrument
was unlawfully used, it was held that the manufacturer
alone was liable to the patentee, though the purchaser knew
that the instrument in question was used, and approved of
its use.2 But where the defendant ordered the godds to be
manufactured by the plaintiff’s process, which goods he after-
wards received and sold, he was held liable.2 The use of the
article merely for philosophical experiment, or for the pur-
pose of ascertaining the verity and exactness of the specifi-
cation, is not an infringement of the right. As to the fact
of using, it may here be observed, that, though this ordina-
rily is proved only by direct evidence, yet the conduct of
the defendant, in refusing to permit the manner of his manu-
facture, and course of his operations to be inspected, is
admissible in evidence, as furnishing a presumption that he
has infringed the plaintiff’s right. If the article, made by
the defendant, agrees in all its qualities with one made upon
the plaintiff’s plan, it is prima facie evidence, that it was so
made.®

 

o

1 Phillips on Patents, p. 361-363.

2 Keplinger v. De Young, 10 Wheat. 358 ; Boyd v. McAlpen, 3 McLean,
427.

3 Gibson v. Brand, 4 M. & G. 179; Ibid.

4 Whittemore v. Cutter, 1 Gall. 429; Phillips on Patents, p. 366.

5 Huddart v. Grimshaw, Webst. Pat. Cas. 91; Hall v. Jarvis, Id. 102;
Godson on Patents, p. 242; Gibson v. Brand, Webst. Pat. Cas. 627, 630.
[A French vessel was rigged in France with gaffs which had been patented
in the United States, and so rigged came into gne of our ports; but as the
gaffs were placed on the vessel when she was built, as part of her original
equipment in a foreign country, by persons not within the jurisdiction of our

VOL. II. 47
554 LAW OF EVIDENCE. [PART IV.

§ 497. If the use of the machine or other subject of the
patent is shown to have been prior to the grant of the patent,
it is no infringement; but it cannot be afterwards continued.
So, if a patent proves to be void, on account of a formal
defect in the specification, for which reason it is surrendered,
and a new patent is taken out; but in the interim, another
person without license, erects and uses the thing invented,
his continued use of it, after the second patent is issued, will
be an infringement of the right; but he will not be liable for
the intermediate use, before the issuing of the second patent.
And the law is the same, where a patent, originally void, is
amended by filing a disclaimer, under the statute.?

§ 498. It must also appear, that the machine used by the
defendant is identical with the subject of the- patent. Ma-
chines are the same if they operate in the same manner, and
produce the same results, upon the same principles’ If the
differences between the two machines are substantial, they
are not alike; but if formal only,’ then they are alike. To
this point the opinion of experts is admissible in evidence ;
but it is still only matter of opinion, to be weighed and judged
of by all the other circumstances of the case. The question
whether the principles are the same in both machines, when
all the facts are given, is rather a matter of law, than of the
opinion of mechanics ;* but the general question of identity,
as well as the general question of infringement, being a

 

patent laws, it was held that such use of the gaffs was not an infringement of
the patent. Brown v. ‘Duchesne, 2 Curtis, C. C. 371.]

1 Ames v. Howard, 1 Sumn. 482; Phillips on Patents, pp. 368, 370;
Dixon v. Moyer, 4 Wash. 68.

2 Perry v. Skinner, 2M. & W. 471; 1 Jur. 433, 8. C.; Stat. U. S. 1837,
ch. 45, §§ 7, 9, which is essentially similar to Stat. 5 & 6 W. 4, ch. 83, § 1.

3 Gray v. Osgood, 1 Pet. C. C. R. 894; Odiorne v. Winkley, 2 Gall. 51.
A witness, who has previously constructed a machine like the plaintiff’s,
may look at a drawing, not made by himself, and say, whether he has such
a recollection of the machine, as to be able to say, that it is a correct draw-
ing of it. Rex v. Hadden, 2 C. & P. 184.

4 Barrett v. Hall, 1 Mason, 470, 471. And see Morgan v. Seaward,
Webst. Pat. Cas. 171.
PART IV.] PATENTS. 555

mixed question of law and fact, is submitted to the Jury,
under proper instructions from the Court.)

§ 499. The purchaser of a license to use an invention, is
a competent witness for the plaintiff, in an action for infringe-
ment of the patent right; for he has no direct pecuniary in-
terest in supporting the patent, but on the contrary, it may
be for his advantage that it should not be supported.?

§ 500. The defence, in an action for infringement of a
patent right, is usually directed either to the patent itself, in
order to invalidate the plaintiff’s title; or to the fact of its
violation by the defendant; and it is ordinarily made under
the general issue, with notice of special matter to be given in
evidence, which the statute permits. The notice of special
matter must have been given to the plaintiff or his attorney
thirty days before the trial. Any special matter is admis-
sible, “tending,” as the statute expresses it, “to prove, (1.)
that the description and specification filed by plaintiff does
not contain the whole truth relative to his invention or dis-
covery ; or (2.) that it contains more than is necessary to
produce the described effect ; which concealment or addition
shall fully appear to have been made for the purpose of
deceiving the public; or (3.) that the patentee was not the
original and first inventor or discoverer of the thing patented,
or of a substantial and material part thereof claimed as new;

 

1 Thid.; Morgan v. Seaward, Webst. Pat. Cas. 168; Jupe v. Pratt, Id.
146; Macnamara v. Hulse, 1 Car. & Marshm. 471; Boulton v. Bull, 2 H.
Bl. 480.

2 Derosne v. Fairie, Webst. Pat. Cas. 154; 1 M. & Rob. 457, S. C.

3 Where the defendant pleaded, 1. Not guilty; 2. That the plaintiff was
not the true and first inventor; 3. That the invention had previously been
wholly or in part publicly and generally known, used, practised, and pub-
lished ; it was held, that the issue on the first plea must be determined by
the acts done by the defendant, without reference to the intention with
which they were done; that the second plea would be proved by showing a
publication before the date of the letters-patent ; and that the third plea
only raised a question of user before the grant of the letters-patent. Stead
v. Anderson, 4 M. G. & 8. 806.
556 LAW OF EVIDENCE. [PART IV.

or (4.) that it had been described in some public work ante-
rior to the supposed discovery thereof by the patentee; or
, (5.) had been in public use or on sale with the consent and
allowance of the patentee before his application for a patent;
| or (6.) that he had surreptitiously or unjustly obtained the
patent for that which was in fact invented or discovered by
another, who was using reasonable diligence in adapting and
perfecting the same ; or (7.) that the patentee, if an alien at
the time the patent was granted, had failed and neglected,
for the space of eighteen months from the date of the patent,
to put and continue on sale to the public, on reasonable
terms, the invention or discovery for which the patent issued ;
(8.) and whenever the defendant relies in his defence on the
fact of a previous invention, knowledge, or use of the thing
patented, he shall state, in his notice of special matter, the
names and places of residence of those whom he intends to
prove to have possessed a prior knowledge of the thing, and
where the same had been used;. in either of which cases,
judgment shall be rendered for the defendant, with costs;
(9.) Provided, however, That whenever it shall satisfactorily
appear, that the patentee, at the time of making his applica-
tion for the patent, believed’ himself to be the first inventor
or discoverer of the thing patented, the same shall not be
held to be void on account of the invention or discovery, or
any part thereof, having been before known or used in any
foreign country; it not appearing that the same or any sub-
stantial part thereof, had before been patented or described
in any printed publication.” 1

§ 501. As the proof of novelty of invention, on the side of
the plaintiff, must of necessity be negative in its character,
it may be successfully opposed, on the part of the defendant,
by a single witness, testifying that he had seen the inven-
tion in actual use, at a time anterior to the plaintiff’s inven-
tion. The facility with which this defence may be made,
affords a strong temptation to the crime of subornation of
perjury; to prevent which the defendant is required to state,

 

1 Stat. U. S. 1886, ch. 357, sec. 15.
PART Iv.] PATENTS. . 50T

in his notice, the names and residence of the witnesses by
whom the alleged previous intention is to be proved. But
notwithstanding its liability to abuse, the evidence is admis-
sible, to be weighed by the Jury, who are to consider, whether,
upon the whole evidence, they are satisfied of the want of
novelty. If the action is brought by an assignee against
the patentee himself, he is estopped by his own deed of as-
signment from showing, that it was not a new invention?

§ 501 a. The question, whether the plaintiff is the true and
original inventor or not, depends on the question whether he
borrowed the invention from a source open to the public, or
not It seems that his title is not destroyed by the fact that
the same invention has been previously made, if it had alto-
gether been lost sight of If the invention has been dis-
tinctly described, not by way of mere speculation or sugges-
tion, but as a complete, successful, and perfect invention, in
a book, whether written or printed, which has been publicly
circulated, whether at home or abroad, this is a sufficient
answer to the plaintiff’s claim as the first inventor, whether
he knew of the publication or not.

§ 502. The public use and exercise of an invention, which
prevents it from being considered as new, is a use in public,
so as to come to the knowledge of others than the inventor,
as contradistinguished from the use of it by himself in pri-
vate, or by another by his license, and in order to test its
qualities ; and does not mean a use by the public generally.

 

1 Manton v. Manton, Dav. Pat. Cas. 250; Phillips on Patents, p. 415-417;
Lewis v. Marling, 10 B. & C. 22; Cornish v. Keene, 3 Bing. N. C. 570. It
is sufficient if the invention is new as to general use and public exercise.
Lewis v. Marling, Webst. Pat. Cas. 492.

2 Oldham v. Langmead, cited 3 T. R. 441.

3 Walton v. Potter, Webst. Pat. Cas. 592.

4 Househill Co. v. Neilson, Webst. Pat. Cas. 690.

5 Tbid.; Stead v. Williams, 8 Jur. 930; 7M. & G. 818; Brooks v. Jen-
kins, 8 McLean, 250.

6 Carpenter v. Smith, 9 M. & W. 300; Webst. Pat. Cas. 535. And see

47 *
558 LAW OF EVIDENCE. [PART IV.

But it is not necessary, that the use should come down to
the time when the patent was granted; proof of public use,
though it has been discontinued, is sufficient to invalidate
the patent And the place of the use, whether at home or
abroad, makes no difference ;? provided in the case of for-
eign use, the invention has also been described in a-printed
publication? It is sufficient to prove, that it was not first
reduced to practice by the patentee ;* but it is not sufficient
to prove, that another was the first inventor, if he neither
reduced the invention to practice, nor used due diligence in
adapting and perfecting it.6 The proof of use may be re-
butted by the plaintiff, by showing, that it was by his
license.®

§ 503. The defendant may also prove in defence, a sub-
sequent patent, granted to the same patentee, either alone or
jointly with another person, and either for the whole or a
part of the same invention.’ So, he may show, that different
and distinct inventions are joined in the same patent; or that
the invention is not lawful, or is pernicious®

 

Pennock ». Dialogue, 4 Wash. 544 ; 2 Pet. 1,8. C.; Bedford v. Hunt, 1 Ma-
son, 302; Bently v. Fleming, 1 C. & K. 587.

1 Househill Coal and Iron Co. v. Neilson, 9 Cl. & Finn. 788. The ques-
tion of public use, as, whether it were a use for manufacture, or only for
experiment which had been abandoned, is a question for the Jury. Elliott
v. Aston, Webst. Pat. Cas. 224; Cornish v. Keene, 3 Bing. N. C. 570.

2 Brown v. Annandale, Webst. Pat. Cas. 433; Phillips on Patents, ch. 7,
§ 16; Anon. 1 Chitty, 24, n.

3 Stat. U. S. 1836, ch. 357, § 15; [O'Reilly v. Morse, 15 How. (U. 8.)
62.]

4 Woodcock v. Parker, 1 Gall. 486; Tennant’s Case, Webst. Pat. Cas.
125, n.; Dav. Pat. Cas. 429, 8. C.

5 Pennock v. Dialogue, 4 Wash. 538; Stat. U. S. 1836, ch. 857, § 15.

6 Phillips on Patents, p. 422.

7 Treadwell v. Bladen, 4 Wash. 709 ; Phillips on Patents, p. 420; Odiorne
v. The Amesbury Nail Factory, 2 Mason, 28; Barrett v. Hall, 1 Mason, 447.
[So on a bill for an injunction by one tenant in common of letters-patent,
the respondent may show a license under another tenant in common of the
same patent; such tenant in common having an equal right to make, use,
and sell the thing patented. Clum v. Brewer, 2 Curtis, C. C. 506.]

® Phillips on Patents, pp. 128, 421.
PART IV.] PATENTS, 559

§ 504. The defendant may also show an abandonment of
the invention by the plaintiff, and a dedication or surrender
of it to public use, prior to the issuing of the patent. And
if such dedication was made, or the public use of the inven-
tion was acquiesced in for a long period, subsequent to the
issuing of the patent, this is a good defence in equity, if the
fact is explicitly relied on, and put in issue by the answer.?
But the public use or sale of an invention, in order to de-
prive the inventor of his right to a patent, must be a pub-
lic use or sale by others, with his knowledge and consent,
and before his application for the patent. A sale or use of
it with such knowledge or consent, in the interval of time
between the application for a patent and the grant thereof,
has no such effect.2 Nor is it material, whether the public
use was originally by express permission of the inventor, or
by piracy; for in either case it is his acquiescence in the
public use that renders the subsequent patent void. And he
is presumed to acquiesce, when he knows or might know of
the public use.*

§ 505. A material defect in the specification, whether acci-
dental or designed and fraudulent, may also be shown in de-
fence of this action, both by Common Law, and by statute.®
So, if the specification is designedly ambiguous and obscure ;
or, if it seeks to cover more than is actually new and useful,

 

1 Phillips on Patents, ch. 7, § 19, p. 181-205, 422; Pennock v. Dialogue,
4 Wash. 538; 2 Pet. 1,8. C.; Treadwell v. Bladen, 4 Wash. 709; Whitte-
more v. Cutter, 1 Gall. 478. A disuse of the invention after the grant of
letters-patent, is no defence at law. Gray v. James, 1 Pet. C. C. R. 394..

2 Wyeth v. Stone, 1 Story, R. 273, 282. But it is no defence at law.
Shaw v. Cooper, 7 Pet. 292.

3 Ryan v. Goodwin, 3 Sumn. 514.

4 Shaw v. Cooper, 7 Pet. 292; Whittemore v. Cutter, 1 Gall. 482; Stat.
U. S. 1836, ch. 357, §§ 6,15. See also Mellus v. Silsbee, 4 Mason, 108,

5 Rex v. Cutler, 1 Stark. 354; Phillips on Patents, p. 424; Stat. U. S.
1836, ch. 357, § 15, [If the specifications do not describe the invention with
reasonable certainty and precision, the patentee can claim nothing under
his patent. Parker v. Stiles, 5 McLean, 44.]
560 LAW OF EVIDENCE. [PART IV

this also is good defence.1 Whether the want of utility can
be given in evidence under the general issue, has been ques-
tioned ; but the better opinion is, that it may, as it cannot
justly be said to be a surprise on the plaintiff?

§ 506. In regard to the fact of infringement, the general

i doctrine is, that the use of any substantial part of the inven-
; tion, though with some modifications of form, or apparatus,
' is a violation of the patent right. It is the substance and the
principle of the machine, and not the mere form, the identity
of purpose, and not of name, which are to be regarded. A
specious variation in form, or an alteration in the mode of
adaptation, however ingenious, does not render it any the less
an infringement. So, the use of a chemical equivalent for
a substance described in the patent, if known to be so at the
time, and it be used for the purpose of taking the benefit of
the patent by making a colorable variation therefrom, is an
infringement. It is a question peculiarly for the Jury; who
must say, whether the defendant has availed himself of the
invention of the plaintiff, without having so far departed
therefrom, as to give to his act the denomination of a new
discovery.® If the patent is for several distinct improvements,
or for several machines, the use of one only is a violation

 

1 Galloway v. Bleaden, Webst. Pat. Cas. 524; Hill v. Thompson, 8 Taunt,
375; Lowell v. Lewis, 1 Mason, 182; Evans v. Eaton, 1 Pet. C. C. R. 322.
Unless the excess is disclaimed. Stat. U. S. 1837, ch. 45, §§ 7, 9.

2 Phillips on Patents, p. 426; Langdon v. De Groot, 1 Paine, 203; Ha-
worth v. Hardcastle, 1 Bing. N. C. 182.

3 Wyeth v. Stone, 1 Story, R. 273; Hill v. Thompson, 8 Taunt. 375};
Walton v. Potter, 3 M. & G. 411; 4 Scott, N. R. 91; Webst. Pat. Cas.
585; Morgan v. Seward, Webst. Pat. Cas. 171; Cutler’s patent, Id. 427;
[Sargent v. Larned, 2 Curtis, C. C. 340; O'Reilly v. Morse, 15 Howard,
U.S. 62.]

4 Heath v. Unwin, 14 Eng. Law & Eq. R. 202, per Erle, J., 16 Jur. 996.
[See, also, Unwin v. Heath, 32 Eng. Law & Eq. R. 45; Newton v. Grand
Railway Co. 6 Ib. 557.]

® Walton v. Potter, Webst. Pat. Cas. 586, 587; [Battin v. Taggart, 17
How. U. 8. 74.]
PART IV.] PATENTS. 561

of the right;1 but where the patent is for the entire combi-
nation of three things, and not of any two of them, it is no
infringement to construct a machine containing only two of
the combinations.2 Evidence that the invention of the de-
fendant is better than that of the plaintiff is improper, except
to show a substantial difference between the two inventions.*

§ 507. Where the patent was originally too broad in its
specification, including more than the patentee is entitled to
hold, the error may now be cured by a disclaimer, filed pur-
suant to the statute But the disclaimer, to be effectual,

 

1 Moody »v. Fisk, 2 Mason, 112; Wyeth v. Stone, 1 Story, R. 273; Gillett
v. Wilby, 9 C. & P. 834; Cornish v. Keene, 3 Bing. N. C. 570.

2 Prouty v. Draper, 1 Story, R. 568. [A patent claiming parts in combi-
nation, is not infringed by using part of the combination. McCormick v.
Manny, 6 McLean, 539; Brooks v. Bicknell, 4 Ib. 70; Stimpson v. Balt.
&c. Railroad, 10 How. U. S. 329.]

3 Alden v. Dewey, 1 Story, R. 336.

4 Stat. U. S. 1837, ch. 45, §§ 7, 9; the provisions of which are these :—
“Sec. 7. And be it further enacted, That, whenever any patentee shall
have, through inadvertence, accident, or mistake, made his specification of
claim too broad, claiming more than that of which he was the original or
first inventor, some material and substantial part of the thing patented being
truly and justly his own, any such patentee, his administrators, executors,
and assigns, whether of the whole or of a sectional interest therein, may
make disclaimer of such parts of the thing patented as the disclaimant shall
not claim to old by virtue of the patent or assignment, stating therein the
extent of his interest in such patent; which disclaimer shall be in writing,
attested by one or more witnesses, and recorded in the Patent-Office, on
payment by the person disclaiming, in manner as other patent duties are
required by law to be paid, of the sum of ten dollars. And such dis-
claimer shall thereafter be taken and considered as part of the original
specification, to the extent of the interest which shall be possessed in the
patent or right secured thereby, by the disclaimant, and by those claiming
by or under him subsequent to the record thereof. But no such disclaimer
shall affect any action pending at the time of its being filed, except so far
as may relate to the question of unreasonable neglect or delay in filing
the same.

“ Sec. 9. And be it further enacted, (anything in the fifteenth section of
the act to which this is additional, to the contrary notwithstanding,) That
whenever, by mistake, accident, or inadvertence, and without any wilful
‘ default or intent to defraud or mislead the public, any patentee shall have in
t
562 LAW OF EVIDENCE. [PART Lv.

must be filed in the Patent-Office before the suit is brought;
otherwise, the plaintiff will not recover the costs of suit, even
though he should prove, that the infringement was in a part
of the invention not disclaimed. And where a disclaimer
has been filed, whether before or after the suit is commenced,
yet if the filing of it has been unreasonably neglected or
delayed, this will constitute a good defence to the action?
If the patentee has assigned his patent in part, and a joint
suit in Equity is brought by him and the assignee for a per-
petual injunction, a disclaimer by the patentee alone, without
the assignee’s uniting in it, will not entitle them to the benefit
of the statute.

§ 508. In regard to the competency of witnesses, it has
been held, that persons why have used the machine in ques-
tion, as the defendant has done, are not thereby rendered
incompetent witnesses for him, notwithstanding the object of

 

his specification claimed to be the original and first inventor or discoverer of
any material or substantial part of the thing patented, of which he was not
the first and original inventor, and shall have no legal or just right to claim
the same, in every such case, the patent shall be deemed good and valid for
so much of the invention or discovery as shall be truly and bond fide his own :
Provided, It shall be a material and substantial part of the thing patented,
and be definitely distinguishable from the other parts so claimed without
right as aforesaid. And every such patentee, his executors, administrators,
and assigns, whether of a whole or of a sectional interest therein, shall be
entitled to maintain a suit at law or in equity on such patent for any infringe-
ment of such part of the invention or discovery as shall be bond fide his own
as aforesaid, notwithstanding the specification may embrace more than he
shall have any legal right to claim. But, in every such case in which a
judgment or verdict shall be rendered for the plaintiff, he shall not be enti-
tled to recover costs against the defendant, unless he shall have entered at
the Patent-Office, prior to the commencement of the suit, a disclaimer of all
that part of the thing patented, which was so claimed without right: Pro-
vided, however, That no person bringing any such suit shall be entitled to
the benefits of the provisions contained in this section, who shall have un-
reasonably neglected or delayed to enter at the Patent-Office a disclaimer
as aforesaid.”

1 Reed v. Cutter, 1 Story, R. 590; [Guyon v. Serrell, 1 Blatch. C. C.
244; Foote v. Silsby, Ib. 445; Silsby v. Foote, 14 How. U. S. 218.]

2 Wyeth v. Stone, 1 Story, R. 273.
PART Iv.] PATENTS. 563.

the defence is to invalidate the patent, as well as to defeat
the claim of damages ; for in such a case the witness stands
in the same predicament as the rest of the community ; and
the objection to his competency would equally apply to every
witness, since, if the patent were void in law, every person
might use it, and therefore every person might be said to
have an interest in making it public property.) Another
patentee claiming adversely to the plaintiff, and under whose
license the defendant has acted, is also a competent witness
for the defendant.” .

§ 509. The subject of Copyricut, which is usually treated
in connection with that of Patents, may properly be con-
sidered in this place.

§ 510. The remedy for an infringement of copyright, is
either at law, by an action for the statute penalties, or by
an action on the case for damages, or in Equity, by a bill
for an injunction ;2 but in either case, the evidence, neces-
sary on both sides, is substantially the same, the plaintiff
being obliged to prove his title to the exclusive privilege
claimed, and the fact of its violation, or, in Equity, at least
an intended violation, by the defendant.

§511. The plaintiff, to make out his title, must prove
that, prior to the publication of his work, he deposited a
printed copy of its title in the clerk’s office of the District
Court of the United States, for the district where he resided
at the time, and that notice of the copyright was given on
the title-page, or the page next following, or, if it be a map,
or print, or musical composition, then on its face, in the
form prescribed by the statute. He is also required to
deliver to the District Clerk a copy of the work, within

 

1 Evans v. Eaton, 7 Wheat. 356; Evans v. Hettich, Id. 453.

2 Treadwell v. Bladen, 4 Wash. 704.

3 Stat. U. 8. 1831, ch. 16. The subject of literary property, both by com-
mon law and by statute, received a very full and elaborate discussion in the
leading case of Wheaton v. Peters, 8 Peters, 591.
564 LAW OF EVIDENCE. [PaRT Iv.

three months after its publication;! and it seems, that a
compliance with this requirement also must be strictly
shown.? Of these facts, the certificate of the District Clerk,

 

1 Stat. U. S. 1831, ch. 16, §§ 4,5. These sections are as follows : —“ Sect.
4, And be it further enacted, that no person shall be entitled to the benefit
of this act, unless he shall, before publication, deposit a printed copy of the
title of such book or books, map, chart, musical composition, print, cut or en-
graving, in the clerk’s office of the district court of the district wherein the
author or proprietor shall reside, and the clerk of such court is hereby di-
rected and required to record the same (qu. name ?) thereof forthwith, in a
book to be kept for that purpose, in the words following (giving a copy of
the title under the seal of the court, to the said author or proprietor, when-
ever he shall require the same ;) ‘ District of —— to wit: Be it remembered,
that on the day of anno domini,—— A. B. of the said district,
hath deposited in this office the title of a book, (map, chart or otherwise, as
the case may be,) the title of which is in the words following, to wit: (here
insert the title;) the right whereof he claims as author (or proprietor, as the
case may be,) in conformity with an act of Congress, entitled, “ An act to
amend the several acts respecting copyrights.” C. D. Clerk of the district,’
For which record, the clerk shall be entitled to receive, from the person
claiming such right as aforesaid, fifty cents; and the like sum for every copy
under seal, actually given to such person or his assigns. And the author or
proprietor of any such book, map, chart, musical composition, print, cut, or
engraving, shall, within three months from the publication of said book, map,
chart, musical composition, print, cut, or engraving, deliver, or caused to be
delivered a copy of the same to the clerk of said district. And it shall be
the duty of the clerk of each district court, at least once in every year, to
transmit a certified list of all such records of copyright, including the titles
so recorded, and the date of record, and also all the several copies of books
or other works deposited in his office according to this act, to the Secretary
of State, to be preserved in his office.

“Sect. 5. And be it further enacted, That no person shall be entitled to the
benefit of this act, unless he shall give information of copyright being secured,
by causing to be inserted, in the several copies of each and every edition
published during the term secured, on the title-page, or the page immediately
following, if it be a book, or, if a map, chart, musical composition, print, cut,
or engraving, by causing to be impressed on the face thereof, or if a volume
of maps, charts, music, or engravings, upon the title or frontispiece thereof,
the following words, viz.: ‘ Entered according to act of Congress, in the year
—., by A.B., in the clerk’s office of the district court of , (as the case
may be.)”

2 Such was the construction of a similar provision in the act of 1790,
ch. 42, sec. 4. Ewer v. Coxe, 4 Wash. 487; Wheaton v. Peters, 8 Peters,
591,

 

 

 
PART IV.] PATENTS. 565

and the production of a copy of the work, will be sufficient
primd facie evidence.

§ 511 a. The author of any book or other composition
enumerated in the statutes respecting the law of copyright,
is also required to deliver a copy thereof to the librarian of
the Smithsonian Institution, and another copy to the libra-
rian of the Congress Library, for the use of those libraries,
within three months after the publication of the book, map,
&ec. But this provision is understood as merely directory,
and not as another condition, added to those already made
precedent to the exclusive right of the author?

§ 512. It is frequently necessary for the plaintiff to go fur-
ther, and prove, that he is the author of the work; for which
purpose the original manuscript, which it is always expe-
dient to preserve, is admissible, and generally is sufficient
evidence; it being proved to be the handwriting of himself
or of his amanuensis. If it is lost or destroyed, it must be
proved by secondary evidence. If the subject was an en-
graving, it may be proved by producing one of the prints
taken from the original plate; the production of the plate
itself not being required.

§ 513. Where the action is by an assignee, he must deduce
his title by legal assignment from the original author or pro-
prietor, in addition to the proof already mentioned. The

 

1 Stat. U. S. 1846, ch. 178, § 10.

2 Jollie v. Jaques, N. Y. Leg. Obs. Jan. 1851, p. 11; [1 Blatch. C. C.
618.]

3 Maugham on Literary Property, p. 165; Thompson v. Symonds, 5 T.
R. 41,46. [Where an author is employed by the proprietor of a periodical
to write for it articles on certain terms as to price, but without any mention
of the copyright, it is to be inferred that the copyright was to belong to such
proprietor. Sweet v. Benning, 30 Eng. Law & Eq. 461; Richardson v. Gil-
bert, 3 Ib. 268. One who permits pupils to take coicn of his manuscripts
for the purpose of instructing themselves and others, does not, thereby
abandon them to the public, and the publication of them will be restrained
by injunction. Bartlett v. Crittenden, 4 McLean, 300.]

VOL. II. 48
566 LAW OF EVIDENCE. [PART Iv.

instrument of assignment must be proved or acknowledged in
the same manner as deeds of land are required to be proved
or acknowledged in the State or District where the original

*' copyright is deposited and recorded; and in order to be
valid against a subsequent purchaser without notice, it must
also be recorded in the clerk’s office of the same District
within sixty days after its execution.

§ 514. The plaintiff must prove the infringement of his
right by the defendant. And it is an infringement, if the
defendant has published so much of the plaintiff’s work as
to serve as a substitute for it; or has extracted so much as
to communicate the same knowledge; whether it be in the
colorable form of an abridgment, or a review, or by incor-
porating it into some larger work, such as an encyclopedia,
or in any other mode? For the question of violation of
copyright may depend upon the value, rather than on the
quantity of the selected materials. If so much of the work
be taken, in form and substance, that the value of the original
work is sensibly diminished, or the labors of the author are
substantially, to an injurious extent, appropriated by another,

{it constitutes, in law, pro tanto, a piracy4 But a fair and
real abridgment, or a fair quotation, made in good faith, is
no violation; and of this intent the Jury are to judge. If

 

1 Stat. U. S. 1834, ch. 157, §1; Curtis on Copyright, ch. 8, p. 216-235.
[A seizure and sale on execution of the engraved plate of a map, for which
the debtor has obtained a copyright, does not transfer the copyright to the
purchaser; and the debtor is entitled, without reimbursing to the purchaser
the money paid by the latter on such sale, to an injunction to restrain the
purchaser from striking off and selling copies of the map. Stephens v.
Cady, 14 How. U. 8. 528; Stevens v. Gladding, 17 Ib. 447.]

22 Kent, Comm. 382, 383; Godson on Patents, pp. 475, 476, 2d edit.;
Maugham on Literary Property, Part 3, ch. 1, p. 126-136; Gray v. Rus-
sell, 1 Story, R. 11. See Curtis on Copyright, ch. 5, p. 169-192, where
the subject of originality is treated with clearness and just discrimination.
[Jollie v. Jaques, 1 Blatch. C. C. 618.]

3 Gray v. Russell, 1 Story, R. 11; [Clayton v. Stone, 2 Paine, C. C. 382.)

42 Kent, Comm. 383, note (b), 4th edit. ; Roworth v. Wilkes, 1 Campb.
94.

5 Ibid. ; Godson on Patents, pp. 447,478; Maugham on Literary Property,
PART Iv.] PATENTS. 567

the main design be not copied, the circumstance, that part of
the composition of one author is found in another, is not of
itself piracy, sufficient to support an action. Nor will it
suffice, if the effect of the new publication is prejudicial in
some degree to that of the plaintiff, unless it is substantially
so. If it is substantially a copy, it is actionable, however
innocent the intention of the defendant in publishing it; on
the other hand, if it is not substantially a copy, or a colorable
selection, or an abridgment, the publication is lawful, how-
ever corrupt the motive. It is the middling class of cases,
which involve the greatest difficulty, namely, where there is
not only a considerable portion of the plaintiff’s work taken,
but also much that is not; and here the question, upon the
whole, is, whether it is a legitimate use of the plaintiff’s
publication, in the fair exercise of a mental operation, en-
titling it to the character of an original work.

§ 515. In the defence of this action, on other grounds than
that of defect in the plaintiff’s case, it may be shown that
the plaintiff's publication was itself pirated, or that it was
obscene, or immoral, or libellous, either on government, or
on individuals; or that it was in other respects of a nature

 

pp. 98, 99, 129-132; [Story’s Executors v. Holcombe, 4 McLean, 306.
Nor is a prose translation (having no qualities of a paraphrase) of a copyright
prose romance, which the author had herself caused to be translated in a
way she liked and copyrighted, an infringement of the author's copyright
of the original. Stowe v. Thomas, 2 Wallace, Jr. 547.]

1 Wilkins v. Aikin, 17 Ves. 422, 426. It is sometimes said, that in these
cases the question is, whether it was done animo furandi or not. But the
accuracy of this test is not very readily perceived. The subject of Infringe-
ment is copiously discussed in Curtis on Copyright, ch. 9, p. 236-305.
And see Webb v. Powers, 2 W. & M. 497.

2In order to prove a prior publication in a foreign country, it is not
enough to prove, by a witness, that he has seen it there, in print, without
accounting for the non-production of the printed copy. Boosy v. Davidson,
13 Jur. 678. [A charge of piracy of an English book cannot be rebutted,
by showing that the part complained of was copied from a foreign book,
which foreign book appeared to be copied from the English book. Murray
v. Bogue, 17 Eng. Law & Eq. 165.]
568 LAW OF EVIDENCE. [PART Iv.

mischievously to affect the public morals or interests.1 But
in Equity, it seems, that an injunction may be granted, not-
withstanding the bad character of the subject, if the author,
repenting of his work, seeks by this‘mode to suppress it.?
If the defence is made under the plaintiff’s license for the
publication, the defendant, in an action at law, must prove
it by a writing, signed by the plaintiff, in the presence of two
or more creditable witnesses.®

 

' Godson on Patents, pp. 478, 479; Maugham on Literary Property,
p- 88-99.

2 Southy v. Sherwood, 2 Meriv. 438.

3 Stat. U. S. 1881, ch. 16, §§ 6, 7, 9.
PART IV.] PAYMENT. 569

PAYMENT.

§ 516. Tur defence of payment may be made under the
general issue, in asswmpsit, but in an action of debt on a
specialty or a record, it must be specially pleaded. In either
case, the burden of proof is on the defendant, who must
prove the payment of money, or something accepted in its
stead, made to the plaintiff, or to some person authorized in
his behalf to receive it. The word “payment”. is not a
technical term; it has been imported into law proceedings
from the exchange and not from law treatises. When used
in pleading, in respect to cash, it means immediate satisfac-
tion; but when applied to the delivery of a bill or note, or
other collateral thing, it does not necessarily mean payment
in immediate satisfaction and discharge of the debt, but may
be taken in its popular sense, as delivery only, to be a dis-
charge when converted into money.!

§ 517. If a receipt was given for the money, it is proper
and expedient to produce it; but it is not necessary; parol
evidence of the payment being admissible, notwithstanding

 

1 Manning v. The Duke of Argyle, 6 M. & G. 40. If payment of the
whole sum due is pleaded, but the proof is of the payment of part only, the
defendant is entitled to the benefit of this evidence by way of reduction of
damages. Lord v. Ferrand, 1 Dowl. & L. 630. And proof of the payment
and acceptance of the whole debt will support a -plea of payment of debt
and damages, where the latter are merely nominal. Beaumont v. Great-
head, 3 Dowl. & L. 631. [To constitute a payment, money or some other
valuable thing must be delivered for the purpose of extinguishing the debt,
and must be received for that purpose. Where money was forwarded, but
the creditor refused to receive it, and informed the debtor that the money }
was subject to his order, it was held no payment. Kingston Bank v. Gay, I
19 Barb. 459.]

48 *
570 LAW OF EVIDENCE. [PART Iv.

the written receipt, and without accounting for its absence?
And if produced, it is not conclusive against the plaintiff, but
may be disproved and contradicted by parol evidence.

§ 518. Respecting the person to whom the payment was
made, if it was made to an agent of the plaintiff, his author-
ity may be shown in any of the modes already stated under
that title’ If it was made to an attorney at law, his em-
ployment by the creditor must be proved; in which case,
the payment is ordinarily good, upon the custom of the coun-
try, until his authority has been revoked. Payment of a
judgment to the attorney of record who obtained it, though
made more than a year after the judgment was recovered, has
been held good ;* but if the payment was made to an agent
employed by the attorney, or to the attorney’s clerk, not
authorized to receive it, it is otherwise.6 Even if land has
been set off to the creditor by extent, in satisfaction of an
execution pursuant to the statute in such cases, payment of
the money to the creditor’s attorney of record within the
time allowed by law to redeem the land, is a good payment.”
But proof of payment made to the attorney after his authority
has been revoked, will not discharge the liability of the party
paying.’ It is also a good payment, if made to a person sit-|

 

1 Southwick v. Hayden, 7 Cowen, 334.

2 Ante, Vol. 1, § 305; Skaife v. Jackson, 5 D. & R. 290; 3 B. & C. 421;
Nicholson v. Frazier, 4 Harringt. 206.

3 Supra, tit. AGENCY, per tot.; [Strayhorn v. Webb, 2 Jones’s Law, (N.
C.) 199; Simpson v. Hgginplod, 32 Eng. Law & Eq. 597; Underwood v.
Nicholle, 88 Ib. 321; Bell v. Buckley, 34 Ib. 92.]

4 Hudson ». Johnson; 1 Wash. 10.

5 Langdon v. Potter, 13 Mass. 219; Jackson v. Bartlett, 8 Johns. 361;
Branch v. Burnley, 1 Call, 147; Lewis v. Gamage, 1 Pick. 847; Kellogg v.
Gilbert, 10 Johns, 220; Powell v. Little, 1 W. Bl. 8.

8 Yates v. Freckleton, 2 Doug. 623; Perry v. Turner, 2 Tyrw. 128; 1
Dowl. P. C. 300; 20. & J. 89, 8. C.

7 Gray v. Wass, 1 Greenl. 257.

8 Parker v. Downing, 13 Mass. 465; Wurt v. Lee, 8 Yeates, 7. [The
death of the principal is a revocation of the authority of the agent; yet the
payment of money to an agent after the death of the principal, the death be-
“

PART Iv.| PAYMENT. oT1

ting in the counting-room of the creditor, with account-books
near him, and apparently intrusted with the conduct of the
business ;! but not if made to an apprentice, not in the usual
course of business, but on a collateral transaction? Payment
is also good, if made to one of several partners, trustees, or
executors? And if the plaintiff has drawn an order on the
defendant, payable to a third person, upon which the defend-
ant has made himself absolutely liable to the holder, this, as
against the plaintiff, is a good payment of his claim to that
amount, even though the plaintiff has subsequently counter-
manded itt The possession of the order, by the debtor on
whom it was drawn, is primé facie evidence that he has
paid it.

§ 519. As to the mode of payment, it may be by any lawful

 

ing unknown to both parties, is a good payment, and binds the estate of the
principal. Cassiday v. McKenzie, 4 Watts & Serg. 382.]

1 Barrett v. Deere, 1 M. & Malk. 200.

2 Saunderson v. Bell, 2 C. & Mees. 304; 4 Tyrw. 224, S. C.

3 Porter v. Taylor, 6 M. & 8.156; Stone v. Marsh, Ry. & M. 364; Can
v. Reed, 3 Atk. 695; [Bryant v. Smith, 10 Cush. 169. Payment of an exe-
cution by one of several defendants so far extinguishes it, that it cannot be
subsequently assigned to the debtor paying it, and be levied by him on the
land of the other debtors. Adams v. Drake, 11 Cush. 505. And a payment
of a promissory note by one promisor extinguishes the note. Pray v. Maine,
7 Cush. 253. See also Burr v. Smith, 21 Barb. 262; Thorne v. Smith, 2
Eng. Law & Eq. 303.] :

4 Hodgson v. Anderson, 3 B. & C. 842; Tatlock v. Harris, 3 T. R. 180.
[But a conditional acceptance of such an order does not operate as a pay-
ment, especially if it be afterwards given up to the debtor by such third party
unpaid. Bassett v. Sanborn, 9 Cush. 58. Ifa debtor, on the application of
the creditor, by an order verbal or written, requests a third person to pay
the debt, whether such third person is bound to do so, or not, and he does
pay it, itis a payment of the debt and a discharge of the claim of the creditor.
Tuckerman v. Sleeper, 9 Cush. 180.]

5 [See post, §§ 527, 528. So when a promissory note or bill of exchange
has been negotiated, and afterwards comes into the possession of one of the
parties liable to pay it, such possession is prima facie evidence of payment by
him. Baring v. Clark, 19 Pick. 220; McGee v. Prouty, 9 Met. 547. But
this rule of law does not apply to a possession by one of two joint promisors
in an action by him to recover of the other one half the amount thereof.
Heald v. Davis, 11 Cush. 319.]
572 “LAW OF EVIDENCE. [PART Iv.

method, agreed upon between the parties, and fully executed.
The meaning and intention of the parties, where it can be
distinctly known, is to have effect, unless that intention con-
travene some well-established principle of law. This inten-
tion is to be ascertained, in ordinary cases, by the Jury; but
it is sometimes legally presumed by the Court! Thus, the
giving of a higher security, is conclusively taken as payment
of a simple contract debt. Where the payment is made by
giving the party’s own security, it is either negotiable, or not.
Ordinarily, the giving of a new security of the same kind
with the former, and for the amount due thereon, as, a new
note for an old one, familiarly known in the Roman and
modern continental law as a Novation, is equivalent to pay-
ment of the latter ;? but if it is for a less amount, it is not.8
If a promissory note'is taken as a satisfaction, by express
agreement, it will be so held, even though the debt was due
of record.

§ 520. Where the debtor’s own negotiable note or bill is
given for a preéxisting debt, it is primd facie evidence of
payment, but is still open to inquiry by the Jury. The rea-
son is, that, otherwise, the debtor might be obliged to pay
the debt twice.5 If such note or bill is given for part of the

 

1 Millikin v. Brown, 1 Rawle, 397, 898; Watkins v. Hill, 8 Pick. 522, 528;
Thatcher v. Dinsmore, 5 Mass. 299 ; Johnson v. Veed, 9 Johns. 310.

2 Story on Bills, § 441; Poth. Obl. by Evans, u. 546-564; Cornwall v.
Gould, 4 Pick. 444; Huse v. Alexander, 2 Met. 157.

3 Canfield v. Ives, 18 Pick. 253; Heathcote v. Crookshanks, 2 T. R. 24;
Fitch v. Sutton, 5 East, 230; Smith v. Bartholomew, 1 Met. 276.

4 The New York State Bank v. Fletcher, 5 Wend. 85; Clark v. Pinney,
6 Cowen, 297.

5 Johnson v. Johnson, 11 Mass. 361; Hebden v. Hartsink, 4 Esp. 46;
Thatcher v. Dinsmore, 5 Mass. 299; Holmes v. D’Camp, 1 Johns. 34; Pin-
tard v. Tackington, 10 Johns. 104; Maneely v. McGee, 6 Mass. 143; Butts v.
Dean, 2 Met. 76; Reed v. Upton, 10 Pick. 522; Jones v. Kennedy, 11 Pick.
125; Watkins v. Hill, 8 Pick. 522, 523; Cumming v. Hackley, 8 Johns. 202;
Comstock v. Smith, 10 Shepl. 202; Dogan v. Ashbey,1 Rich. 36. [The pre-
sumption that a negotiable note is taken in satisfaction of a preéxisting debt,
and not as collateral security, is a presumption of fact only, and may be
PART IV.] PAYMENT. 573

debt, it is deemed payment of such part, even though the
debt is collaterally secured by a mortgage.? If the creditor
receives the debtor’s check for the amount, it is payment, if
expressly accepted as such;® unless it was drawn colorably,
or fraudulently, and knowingly without effects. But in the
absence of any evidence of an agreement to receive a check
or draft in payment, it is regarded only as the means where-
by the creditor may obtain payment ;® or, as payment pro-
visionally, until it has been presented and refused ; if it is
dishonored, it is no payment of the debt for which it was
drawn. And if a bill of exchange, given in payment of a
debt, is not admissible in evidence, by being written on a
wrong stamp, it is not deemed as payment, even if the parties
would have paid it on due presentment.’

§ 521. But where the debtor’s own security, not negotiable,

 

rebutted and controlled by evidence that such was not the intention of the
parties. Melledge v. Boston Iron Co. 5 Cush. 170; Parkhurst v. Jackson,
36 Maine, 404; Sweet v. James, 2 R. 1. 270.] By the English decisions, it
seems that the receipt of bills is not deemed payment, unless expressly so ;
agreed, or the bills have been negotiated, and are outstanding against the ‘
defendant. Burden v. Halton, 4 Bing. 454; Rolt v. Watson, Id. 273. And
see Raymond v. Merchant, 8 Cowen, 147; [Belshaw v. Bush, 14 Eng. Law
8 Eq. 269; Coburn v. Odell, 10 Foster, (N. H.) 540; Noel v. Murray, 3
Kernan, (N. Y.) 167; Vansteenburg v. Hoffman, 15 Barb. 28; Mooring ».
Mobile, &c. Ins. Co. 27 Ala. 254; Allen v. King; 4 McLean, 128; Lyman
v. United States Bank, 12 How. (U. 8.) 225.]

1 Isley v. Jewett, 2 Met. 168.

2 Fowler v. Bush, 21 Pick. 230.

3 Barnard v. Graves, 16 Pick. 41. [But not unless so accepted, until it
is cashed. Barnet v. Smith, 10 Foster, (N. H.) 256. See Downey v. Hicks,
14 How. (U.S.) 240.]

4 Dennie v. Hart, 2 Pick. 204; Franklin v. Vanderpool, 1 Hall, (N. Y.)
R. 78; Stedman v. Gouch, 1 Esp. 5; Puckford v. Maxwell, 6 T. R. 52.

5 Cromwell v. Lovett, 1 Hall, (N. Y.) Rep. 56; The People v. Howell,
. 4 Johns. 296; Olcott v. Rathbone, 5 Wend. 490.

6 Pearce v. Davis, 1 M. & Rob. 365; Everett v. Collins, 2 Campb. 515;
Puckford v. Maxwell, 6 T. R. 52; Bond v. Warden, 9 Jur. 198; [Zerano
v. Wilson, 8 Cush. 424; Alcock v. Hopkins, 6 Ib. 484.]

7 Wilson v."Vysar, 4 Taunt. 288; Brown v. Watts, 1 Taunt. 253; Wilson
v. Kennedy, 1 Esp. 245; Gordon v. Strange, 1 Exch. R. 477, S. P.
574 LAW OF EVIDENCE. [PART Iv.

and of no higher nature, is taken for a simple contract debt,
it is not ordinarily taken as payment, unless expressly so
agreed ; except where it is given as a renewal, as before
stated. Whether it was intended as payment or not, is a
question for the Jury.

§ 522. Payment may be proved by evidence of the de-
livery and acceptance of bank-notes ; which will be deemed
as payment at their par value. But if, at the time of de-
livery and acceptance of the notes, the bank had actually
stopped payment, or the notes were counterfeit, the loss falls
on the debtor, however innocent or ignorant of the facts he
may have been.®

§ 523. Proof of the acceptance of the promissory note or
bill of a third person, will also support the defence of pay-
ment. But here it must appear to have been the voluntary
act and choice of the creditor, and not a measure forced upon
him, by necessity, where nothing else could be obtained.
Thus, where the creditor received the note of a stranger
who owed his debtor, the note being made payable to the
agent of the creditor, it was held a good payment, though

 

1 Howland v. Coffin, 9 Pick. 42; Cumming v. Hackley, 8 Johns. 202;
Tobey v. Barber, 5 Johns. 68. So of the debtor’s order on a third person.
Hoar v. Clute, 15 Johns. 224. [See Parker v. Osgood, 4 Gray, 456.]

2 Phillips v. Blake, 1 Met. 246; Snow v. Perry, 9 Pick. 539, 542.

3 Lightbody v. The Ontario Bank, 11 Wend. 9; 13 Wend. 101; Markle
v. Hatfield, 2 Johns. 455; Young v. Adams, 6 Mass. 182; Jones v. Ryde, 5
Taunt. 488; Gloucester Bank v. Salem: Bank, 17 Mass. 42, 43. It has been
said in Massachusetts, that the solvency of the bank, where both parties
were equally innocent, was at the risk of the creditor. See 6 Mass. 185.
But this was reluctantly admitted, on the ground of supposed usage alone,
and was not the point directly in judgment. The same has been held in
Alabama. Lowry v. Murrell, 2 Porter, R. 280.

4 The creditor’s omission to have the notes indorsed by the party from
whom he receives them is primd facie evidence of an agreement to take
them at his own risk. Whitebeck v. Van Ness, 11 Johns. 409; Breed v.
Cook, 15 Johns. 241. Whether the security was accepted in satisfaction of
the original claim is a matter of fact for the Jury. Hart v. Boller, 15 S. &
R. 162; Johnson v. Weed, 9 Johns. 810.
PART IV.| PAYMENT. 575

the promisor afterwards failed.1 So, where goods were bar-
gained for, in exchange for a promissory note held by the
purchaser as indorsee, and were sold accordingly, but the :
note proved to be forged, of which, however, the purchaser
was ignorant, it was held a good payment.2 So, where one
entitled to receive cash receives instead thereof notes or bills
against a third person, it is payment, though the securities
turn out to be of no value But if the sale was intended
for cash, the payment by the notes or bills being no part of
the original stipulation,* or the vendor has been induced to
take them by the fraudulent misrepresentation of the vendee,
as to the solvency of the parties,® or they are forged, or they
are forced upon the vendor by the necessity of the case,
nothing better being attainable,’ it is no payment. If, how-
ever, a creditor, who has received a draft or note upon a
third person, delays for an unreasonable time to present it
for acceptance and payment, whereby a loss accrues, the loss
is his own. So, if he alters the bill and thus vitiates it, he

 

1 Wiseman v. Lyman, 7 Mass. 286.

2 Ellis v. Wild, 6 Mass. 321. And see Alexander v. Owen, 1 T. R. 225.
So, though it be genuine. Harris v. Johnson, 3 Cranch, 311.

3 Fydell v. Clark, 1 Esp. 447. See also Rew v. Barber, 3 Cowen, 272;
Frisbie v. Larned, 21 Wend. 450; Arnold v. Camp, 12 Johns. 409.

4 Ellis v. Wild, 6 Mass. 321. And see Owenson v. Morse, 7 T. R. 64.
In this case, the vendor received the notes of bankers who were in fact
insolvent, and never afterwards opened their house. See also Salem Bank
v. Gloucester Bank, 17 Mass. 1.

5 Pierce v. Drake, 15 Johns. 475; Wilson v. Force, 6 Johns. 110; Brown
v. Jackson, 2 Wash. C. C. R. 24.

6 Markle v. Hatfield, 2 Johns. 455; Bank of the United States v. Bank
of Georgia, 10 Wheat. 333; Hargrave v. Dusenbury, 2 Hawks, 326; [Farr
v. Stevens, 26 Vt. 299.]

7 This was Lord Tenterden’s view of the facts in Robinson v. Read, 9 B.
&C.449. [And whenever a security taken in payment of a demand is void,
or is avoided for any cause, the creditor may bring an action and recover
on the original cause of action. Leonard v. Trustees, &c. 2 Cush. 464; Per-
kins v. Cummings, 2 Gray, 258; Swartwout v. Payne, 19 Johns. 294; Sut-
ton v. Toomer, 7 Barn. & Cress. 416; Atkinson v. Hawdon, 2 Ad. & El. 628;
Sloman v. Cox, 5 Tyrw. 174.] a

8 Chamberlyn v. Delarive, 3 Wils. 353; Bishop v. Chitty, 2 Stra. 1195; »
576 LAW OF EVIDENCE. [PART Iv.

thereby causes it to operate as a satisfaction of the debt.
So, if he accepts from the drawee other bills in payment of
the draft, and they turn out to be worthless?

524. The foreclosure of a mortgage, given to secure the
debt, may also be shown as a payment, made at the time of
complete foreclosure ; but if the property mortgaged is not,
at that time, equal in value to the amount due, it is only
payment pro tanto® A legacy, also, will sometimes be
deemed a payment and satisfaction of a debt due from the
testator. But to be so taken, the debt must have been in
existence and liquidated, at the date of the willt And parol
evidence is admissible to prove extraneous circumstances,
from which the intent of the testator may be inferred, that
the legacy should go in satisfaction of the debt.

§ 525. When payment is made by a remittance by post to
the creditor, it must be shown, on the part of the debtor,
that the letter was properly sealed and directed, and that it
was delivered into the post-office, and not to a private car-
rier or porter. He must also prove, either the express direc-
tion of the creditor to remit in that mode, or a usage or
course of dealing, from which the authority of the creditor

 

Watts v. Willing, 2 Dall. 100; Popley v. Ashley, 6 Mod. 147; Raymond v.
Barr, 13 8. & R. 318; Roberta v. Gallaher, 2 Wash. C. C. R. 191; Copper
v. Power, Anthon, R. 49.

1 Alderson v. Langdale, 3 B. & Ad. 660.

’2 Bolton v. Reichard, 1 Esp. 106.

3 Amory v. Fairbanks, 3 Mass. 562; Hatch v. White, 2 Gall. 152; Omaly
v. Swan, 3 Mason, 474; West v. Chamberlin, 8 Pick. 336; Briggs v. Rich-
mond, 10 Pick. 396; Case v. Boughton, 11 Wend. 106; Spencer v. Hart-
ford, 4 Wend. 381.

4Le Sage v. Coussmaker, 1 Esp. 187. And see Strong v. Williams, 12
Mass. 391; Williams v. Crary, 5 Cowen, 368.- /

5 Cuthbert v. Peacock, 2 Vern. 593; Fane v. Fane, 1 Vern. 81, n. (2),
by Mr. Raithby ; Ante, Vol. 1, §§ 287, 288, 296. And see Clark v. Bo-
gardus, 12 Wend. 67; Mulheran ». Gillespie, Id. 249; Williams v. Crary,
8 Cowen, 246.
PART IV.] PAYMENT. OTT

may be inferred. Where these circumstances concur, and a
loss happens, it is the loss of the creditor?

§ 526. Payment may also be proved by evidence of the
delivery and acceptance of any specific article or collateral
thing in satisfaction of the debt; as has already been shown
in the preceding pages.? Such payment is a good discharge
even of a judgment? Payment even of part of the sum,
may be a satisfaction of the whole debt, if so agreed, pro-
vided it be in a manner collateral to the original obligation ;
as, if it be paid before the day, or in a manner different from
the first agreement, or be made by a stranger, out of his-own
moneys, or under a fair compensation with all the creditors
of the party.

§ 527. Payment may also be presumed or inferred by the
Jury, from sufficient circumstances. Thus, where, in the
ordinary course of dealing, a security when paid, is given up
to the party who pays it; the possession of the security by
the debtor, after the day of payment, is primd facie evidence
that he has paid it® But the mere production of a bill of
exchange from the custody of the acceptor affords no pre-

 

1 Warwicke v. Noakes, 1 Peake, 67; Hawkins v. Rutt, Id. 186; Walter
v. Haynes, Ry. & M. 149. [See True v. Collins, 3 Allen, 438.] It is held
by some, that the sending of bank-notes, uncut, will not discharge the
debtor ; because, among prudent people, it is usual to cut such securities in
halves, and send them at different times. Peake on Evid. by Norris, p.
412.

2 Supra, tit. ACCORD AND SATISFACTION.

3 Brown v. Feeter, 7 Wend. 301.

4 Co. Lit. 2126; Steinman v. Magnus, 11 East, 390; Lewis v. Jones,
4B. & C. 506; Ellis on Debtor and Creditor, pp. 412,413. And see supra,
tit. ACcoRD AND SATISFACTION.

5 Bremridge v. Osborne, 1 Stark. 374; Gibbon v. Featherstonhaugh, Td.
225; Weidner v. Schweigart, 9 S. & R. 385; Smith v. Smith, 15 N. Hamp.
R. 55. See ante, Vol. 1, § 88; [Baring v. Clark, 19 Pick. 220; McGee ».
Prouty, 9 Met. 547. But this rule does not apply to a possession by one of
two joint promisors in an action by him, to recover of the other, one half
of the amount thereof. Heald v. Davis, 11 Cush. 319.]

VOL. Il. 49
578 LAW OF EVIDENCE.. [PART Iv.

sumption that he has paid it, without proof that it was once
in circulation after he accepted it Nor is payment pre-
sumed from a receipt, indorsed on the bill, without evidence
that it is the handwriting of a person entitled to demand
payment Nor will it be presumed from the circumstance
of the defendant’s having drawn a check on a bank or on his
banker, payable to the plaintiff or bearer, without proof that
the money had been paid thereon to the plaintiff; and of
this, the plaintiff’s name on the back of the check will be
sufficient evidence2 And where a bill of exchange, on pre-
sentment by the bankers of the indorsee to the acceptor, was
not paid, but afterwards a stranger called on the bankers’
clerk and paid it, the clerk giving up the bill to him after
indorsing upon it a general receipt of payment; this receipt
was held no evidence of payment by the acceptor, in a sub-
sequent action by the indorsee against him.

§ 528. Payment is also presumed from lapse of time. The
lapse of twenty years, without explanatory circumstances,
affords a presumption of law that the debt is paid, even
though it be due by specialty, which the Court will apply,
without the aid of a Jury. But it may be inferred by the
Jury from circumstances, coupled with the lapse of a shorter
period.® It may also be inferred from the usual course of

 

1 Pfiel v. Vanbattenburg, 2 Campb. 439.

2 Thid.

3 Ege v. Barnett, 3 Esp. 196.

4 Phillips v. Warren, 14 M. & W. 379.

5 Ante, Vol. 1, § 39; Colsell v. Budd, 1 Campb. 27; Cope v. Humphreys,
14 8, & R.15; Ellis on Debtor and Creditor, p. 414; Morrison v. Funk,
23 Penn. State R. 421.]

6 Best on Presumption, § 187; Lesley v. Nones, 7S. & R. 410. If the
debt itself is disputed by the defendant, who admits that it has not been
paid, lapse of time, though it cannot afford any presumption of payment,
may afford a presumption against the original existence of the debt.
Christophers v. Sparke, 2 J. & W. 228; Bander v. Snyder, 5 Barb. 8. C. R.
63. [The lapse of seven years after a legacy is payable, does not raise a
presumption of payment. Strohm’s Appeal, 23 Penn. State R. 351; Gould
v. White, 6 Foster, 178; Sellers v. Holman, 20 Penn. State R. 321; Kline
PART Iv.] PAYMENT. 579

trade in general, or from the habit and course of dealing be-
tween the parties. Thus, where the defendant was regular
in his dealings, and employed a large number of workmen,
whom he was in the habit of paying every Saturday night,
and the plaintiff had been one of his workmen, and had been
seen among them, waiting to receive his wages, but had
ceased to work for the defendant for upwards of two years ;
this was held admissible evidence to found a presumption
that he had been paid with the others.1 So, where the course
' of dealing between the parties, engaged in daily sales of milk
to customers, was to make a daily settlement and payment
of balances without writing, this was held a sufficient ground
to presume payment, until the plaintiff should prove the con-
trary? So also, a receipt for the last year’s or quarter’s rent,
is primé facie evidence that all rents, previously due, have
been paid?

* § 529. In regard to the ascription or appropriation of pay-
ments, the general rule of law is, that a debtor owing several
debts to the same creditor, has a right to apply his payment,
at the time of making it, to which debt he pleases. But this
rule applies only to voluntary payments, and not to those
made under compulsory process of law.t If he makes a
general payment without appropriating it, the creditor may
apply it as he pleases. And where neither party appropri-
ates it, the law will apply it, according to its own view of
the intrinsic justice and equity of the case.

 

v. Kline, Ib. 503; Walker ». Wright, 2 Jones, Law, N. C. 156; McQueen
v. Fletcher, 4 Rich. Eq. 152.]

1 Lucas v. Novosilieski, 1 Esp. 296.

2 Evans v. Birch, 3 Campb. 10.

3 Ante, Vol. 1, § 38.

4 Blackstone Bank v. Hill, 10 Pick. 129; U. States v. Bradbury, Davies,
R. 146.

5 [Nash v. Hodgson, 31 Eng. Law & Eq. 555. And if the money is
paid by the debtor, without any appropriation thereof, to an attorney of the
creditors, the attorney may make the appropriation. Carpenter v. Goin, 19
N. H. 479.] :

6 Per Story, J.,in Cremer v. Higginson, 1 Mason, 338; 1 Story on Equity,
580 LAW OF EVIDENCE. [PART Iv.

§ 530. An appropriation by the debtor may be proved,
either by his express declaration, or by any circumstances

 

§459b; United States v. Wardwell, 5 Mason, 85; Seymour v. Van Slyck, 8
Wend. 403; Chitty on Contracts, p. 382, and cases there cited. Clayton’s
case, in Deyayats v. Noble, 1 Meriv. 605-607; Ellis on Debtor and Creditor,
p. 406-412. The doctrine of the Roman Law on this subject, and its recog-
nition in adjudged cases in the Common Law, are stated by Mr. Cowen, ina
note to the case of Pattison v, Hull, 9 Cowen, 747, as follows: * A moment’s
recurrence to the Civil Law will convince the learned reader how much we
have borrowed from it almost without credit. The whole text of that law,
in relation to the subject under consideration, is contained passim in the
Digest (Lib. 46, tit. 3, De solutionibus et liberationibus) ; as is rendered into
English by Strahan, from the French of Domat’s Civil Law, in its natural
order, as follows :—

“¢1. If a debtor, who owes to a creditor different debts, hath a mind to
pay one of them, he is at liberty to acquit whichsoever of them he pleases ;
and the creditor cannot refuse to receive payment of it; for there is not any
one of them which the debtor may not acquit, although he pays nothin
of all the other debts, provided he acquit entirely the debt which he offers
to pay.’

“ This is precisely the Common Law. Owing two debts to the same per-
son, you may pay which you please, but you must tender the whole debt.
The creditor is not bound to take part of it, though he may do so if he
choose. (22 Ed. 4,.25; Br. Condition, pl. 181; Lofft’s Gilb. 330; Pin-
nel’s case, 5 Co. 117; Colt v. Netterville, 2 P. Wms. 304; Anon. Cro.
Eliz. 68.) Hawkshaw v. Rawlings, (1 Stra. 23,) that the debtor shall not
apply the money, is not law. There are fifteen or twenty cases the other
way.

«“¢9, Tf, in the same case of a debtor who owes several debts to one and
the same creditor, the said debtor makes a payment to him, without declaring
at the same time which of the debts he has a mind to discharge, whether it
be that he gives him a sum of money indefinitely in part payment of what
he owes him, or that there be a compensation [i. e. a set-off ] of debts agreed
on between the debtor and creditor, or in some other manner, the debtor
will have always the same liberty of applying the payment to whichsoever
of the debts he has a mind to acquit. But if the creditor were to apply the
payment, he could apply it only to that debt which he himself would dis-
charge in the first place, in case he were the debtor, for equity requires that
he should act in the affair of his debtor, as he would do in his own. And if,
for example, in the case of two debts, one of them were controverted, and the
other clear, the creditor could not apply the payment to the debt which is
contested by the debtor.’

“The right of the debtor to apply the payment, whether total or partial,
if he do so at the time, is recognized by all the cases. As to the above
PART Iv.] PAYMENT. 581

from which his intention can be inferred! But it seems,
.that this intention must be signified to the creditor at. the

 

doctrine restraining the creditor to an application most favorable to the rights
of the debtor, one cannot read the case of Goddard v. Cox, (2 Str. 1194,)
without being struck with the similarity both in principle and illustration.
The defendant owed the plaintiff three debts: one he contracted himself, a
second he owed absolutely in right of his wife, and the third was due from
his wife as executrix. The defendant made several indefinite payments,
after which his creditor sued him. Chief Justice Lee held the whole of the
above civil-law doctrine: 1. It was agreed the defendant had the first right
to apply the payments; 2. The Chief Justice held, there being no direction
by him, that thereby the right devolved to the plaintiff. And the defendant
being by the marriage equally a debtor for what his wife received dum sola,.
as for what was after, the plaintiff might apply the money received to dis-
charge the wife’s own debt. ‘ But as to the demand against her as executrix,
the validity of which depended upon the question of assets, and manner of
administering them, he was of opinion the plaintiff could not apply any of
the money paid by the defendant to the discharge of that demand.’ 5
“¢3. In all cases where a debtor, owing several debts to one and the same
creditor, is found to have made some payments, of which the application has
not been made by the mutual consent of the ‘parties, and where it is neces-
sary that it be regulated either by a court of justice or by arbitrators, the
payments ought to be applied to the debts which lie heaviest on the debtor,
and which it concerns him most to discharge. (12 Mod. 559; 2 Brownl.
107, 108; 1 Vern. 24; 2 Freem. 261; 1 Ld. Raym. 286; 1 Comb. 468;
Peake, N. P. Cas. 64.) Thus a payment is applied rather to a debt of
which the non-payment would expose the debtor to some penalty, and to
costs and damages, (12 Mod. 559; 2 Brownl. 107, 108; 1 Vern. 24; 2
Freem. 261; 1 Ld. Raym. 286; 1 Comb. 463; Peake, N. P. Cas. 64; 4:
Har. & Johns. 754; 2 Id. 402; 8 Mod. 236); or in the payment of which
his honor might be concerned, than to a debt of which the non-payment would
not be attended with such consequences. “Thus a payment is applied to the
discharge of a debt for which a surety is bound, rather than to acquit what’ the
debtor is singly bound for without giving any security ; (Marryatts v. White,
2 Stark. Rep. 101; Plomer v. Long, 1 Id. 153, contra ;) or to the discharge
of what he owes in his own name, rather than what he stands engaged for
as surety for another. Thus a payment is applied to a debt for which the
debtor has given pawns and mortgages, rather than to a debt due bya
simple bond or promise; (1 Vern. 24; 1 Har. & Johns. 754; 2 Id. 402;)

1 Waters v. Tompkins, 2 C. M. & R. 723; 1 Tyrw. and Grang. 137, S. C.;
Peters v. Anderson, 5 Taunt. 596; Newmarch v. Clay, 14 East, 239 ; Stone
v. Seymour, 15 Wend. 19. The same rule applies to appropriations by
creditors. Seymour v. Van Slyck, 8 Wend. 403.

49 *
582 LAW OF EVIDENCE. [PART Iv.

time; for an entry made in his own books has been held
insufficient to determine the application of the payment.)

 

rather to a debt of which the term has already come, than the one that is
not yet due; (Hammersly v. Knowlys, 2 Esp. R. 666; Niagara Bank v.
Rosevelt, per Woodworth, J., 9 Cowen, R. 412; Baker v. Stackpoole, per
Savage, Ch. J., 9 Cowen, R. 436;) or to an old debt before a new one;
(1 Meriv. 608 ;) and rather to a debt that is clear and liquid, than to one
that is in dispute; (Goddard v. Cox, 2 Str. 1194;) orto a pure and simple
debt before one that is conditional; (Ibid. and 9 Cowen, R. 412.)

“T have here interpolated the common-law cases in the text of the civil
law. On examining them, it will be found that almost every word of the
last quotation has been expressly sanctioned by the English Courts.

“¢4, When a payment made to a creditor to whom several debts are
due, exceeds the debt to which it ought to be applied, the overplus ought
to be applied to the discharge of the debt which follows, according to the
order explained in the preceding article, unless the debtor makes another
choice.’

“ This follows, of course, from principles before stated.

“<5, If a debtor makes a payment to discharge debts which of their na-
ture bear interest, such as treat of a marriage portion, or what is due by
virtue ofa contract of sale, or that the same be due by a sentence of a court
of justice, and the payment be not sufficient to acquit both the principal and
the interest due thereon, the payment will be applied in the first place to
the discharge of the interest, and the overplus to the discharge of a part of
the principal sum.

“«6, If, in the cases of the foregoing article, the creditor had given an
acquittance in general for principal and interest, the payment would not be
applied in an equal proportion to the discharge of a part of the principal
and a part of the interest ; but in the first place all the interest due would
be cleared off, and the remainder would be applied to the discharge of the
principal.’

“ The last two paragraphs contain a doctrine perfectly naturalized by all
our cases, from Chase v. Box, (2 Freem. 361,) to State of Connecticut v.
Jackson, (1 Johns. Ch. Rep. 17, and vid. Stoughton v. Linch, (2 Ib. 209.)
Vid. also Hening’s ed. of Maxims in Law in Equity, App. 1 to Francis’s
Maxims, pp. 106, 108, 118, and the cases there cited. Also Williams v.
Houg}taling, 3 Cowen, 86, 87, 88, 89, note (a), with the cases there
cited.)

“7, When a debtor, obliging himself to a creditor for several causes at
ong and the same time, gives him pawns or mortgages, which he engages
for the security of all the debts, the money which is raised by the sale of
the pawns and mortgages, will be applied in an equal proportion to the dis-

1 Manning v. Westerne, 2 Vern. 606.
PART IV.] PAYMENT. . 583

Thus, where the debtor owed his creditor a private debt, and
also was indebted to him as the agent of several annuitants,
for which latter debts his surety was also liable; and both
the debtor and his surety being called upon in behalf of the
annuitants, the debtor made a general payment, without any
specific appropriation at the time; it was held, that the cir-
cumstances showed his intention to apply it to the annuities,
and that the creditor was therefore not at liberty to ascribe
it to his private debt So, if there be two debts, and the
debtor pays, without appropriation, a sum precisely equal to
what remains due on one of them, but greater than the
amount of the other, this will be regarded as having been
intended in discharge of the former debt.2 So, if there be
two debts, the validity of one of which is disputed, while
the other is acknowledged, a general payment will be pre-
sumed to have been made on account of the latter? But
this right of the debtor to appropriate his payment is not
without some limitation. Thus, for example, he cannot

 

«

s

charge of every one of the debts. [Perry v. Roberts, 2 Ch. Cas. 84, some-
what similar in principle.) But if the debts were contracted at divers times
upon the security of the same pawns and mortgages, so as that the debtor
had mortgaged for the last debts what should remain of the pledge, after
payment of the first, the moneys arising from the pledges would in this case
be applied in the first place to the discharge of the debt of the oldest stand-
ing. And both in the one and the other case, if any interest be due on
account of the debt which is to be discharged by the payment, the same
will be paid before any part thereof be applied to the discharge of the
principal.’

“This paragraph contains the familiar doctrine of priority of pledges;
and follows out the corrollary of applying partial payment to discharge inter-
est in the first place. The proposition, that a payment on pawns, &c., for
simultaneous debts shall be distributed between the two debts, has never
been exactly adjudged with us, though the case interpolated is about the
same in principle. And see what Holt, Ch. J., says in Styart v. Rowland,
(2 Show. Rep. 216.)” See 9 Cowen, R. 778-777. See also Smith v. Screven,
1 McCord, 868; Mayor, &c. of Alexandria v. Patten, 4 Cranch, 316; Mann
v. Marsh, 2 Caines, 99.

1 Shaw v. Picton, 4 B. & C. 715. /
2 Robert v. Garnie, 8 Caines, 14; Marryatts v. White, 2 Stark. R. 101.
3 Tayloe v. Sandiford, 7 Wheat. 20, 21.
584 LAW OF EVIDENCE. [PART Iv.

apply it to the principal only, where the debt carries interest ;
for, by law, every payment towards such debts shall be first
applied to keep down the interest.

§ 531. The right of appropriation by the creditor, where
the debtor makes none, is subject to some exceptions. Thus,
if one debt was due by the debtor as executor, and another
was due in his private capacity, the creditor shall not ascribe
a general payment to the former debt, for its validity will
depend on the question of assets.2 So, if one of two debts
was contracted while the debtor was a trader within the
bankrupt laws, and the other afterwards, the creditor will not
be permitted to apply a general payment to the latter, so as
to expose the debtor to a commission of bankruptcy.3 So,
if one of the creditor’s claims is absolute, and the other is
contingent, as, if he is an indorser or surety for the debtor,
who makes a general payment; the creditor will be bound
to appropriate it to the absolute debt alone. If one of two
claims is legal, and the other equitable, the creditor is bound

‘to apply the payment to the former® If a partner in trade,

being indebted both as a member of the firm, and also on
his own private account, pays the money of the firm, the
creditor is bound to apply it to the partnership debt.6 And
the account-books of the creditor, with proof that the entries
were contemporaneous with the fact of payment, are compe-

 

1 Gwinn v. Whitaker, 1 H. & J. 754; Frazier i Hyland, Ib. 98; Tracy
v. Wikoff, 1 Dall. 124; Norwood v. Manning, 2 Nott & McCord, 395; Dean
v, Williams, 17 Mass. 417; Fay v. Bradley, 1 Pick. 194.

2 Doggard v. Cox, 2 Sim, 1194.

3 Meggott v. Mills, 1 Ld. Raym. 287; Dawe v. Wiiveaunn 1 Peake, 64.

4 Niagara Bank v. Rosevelt, 9 Cawen, 409, 412. [See Upham v. Lefa-
vour, 11 Met. 174, 185; Alden v. Capen, 5 Met. 268.]

5 Birch v. Tebbutt, 2 "Stark. 74; Goddard v. Hodges, 1 C. & Mees. 33;
3 Tyrw. 259,8.C. But where the equitable debt was prior to the other,
the creditor has in one case been permitted to apply the payment to the
former. Bosanquet v. Wray, 6 Taunt. 597. And see Bancroft v. Dumas,
6 Washb. 456.

6 Van Rensselaer v. Roberts, 5 Denio, 470.
PART IV.] PAYMENT. 585

tent evidence in his favor, to show to which, of two accounts,
he applied a general payment.

§ 531 a. The principle, on which these and other excep-
tions are founded, seems to be this: that the debtor, by
waiving his right of appropriation in favor of the creditor,
could not have intended that it should be exercised to his
own injury; but on the contrary, that he relied on the
creditor’s making an appropriation to which he could not
reasonably or justly object. The creditor, therefore, never
acquires the right to apply a payment with a view merely to
his own interest or convenience, unless the debtor has had
an opportunity to direct its application, by having the money
pass through his own hands, or under his own control. And
upon the above principle it has been held that where a gen-
eral payment was made to a creditor who held three promis-
sory notes against the debtor, all which were within the bar
of the Statute of Limitations, the creditor was not at liberty
to apply a part of the money to each of the notes, so as to
revive his remedy upon them all; but must make his election
of one only, and apply the payment to that one alone?

§ 532. At what time the creditor must exercise this right
of appropriation, whether forthwith, upon the receipt of a
general payment, or whether at any subsequent time, at his
pleasure, is not clearly settled ‘by the English decisions; but
the weight of authority seems in favor of his right to make
the election at any time when he pleases, And this unlim-

 

1 Thompson v. Brown, 1 M. & Malk. 40. [And if the holder of two notes
of the same maker, receives from him in part payment a sum smaller than
either, he may apply the whole on either note, but not half on each note
without the debtor’s appropriation. Wheeler v. House, 1 Williams, (Vt.) 735.]

2 Ayer v. Hawkins, 19 Verm. 26. [But a payment made by a debtor to/
a creditor to whom he owes several distinct debts, without any direction as:
to its application, and immediately applied by the creditor to a debt barred :
by the Statute of Limitations, is not such a payment as will take the remain- |
der of that debt out of the operation of the statute. Pond v. Williams, 1
Gray, 630.]

3 Clayton’s case, in Devaynes v. Noble, 1 Meriv. 605, 607; Ellis on
586 LAW OF EVIDENCE. [PART Iv.

ited right has been recognized in the United States ; subject
only to this restriction, that he cannot appropriate a general
payment to a debt created after the payment was made.

§ 532 a. After a payment has been rightfully ascribed to
one of several debts, it is not in the power of either party
alone to change it. Butif both parties consent, the ascrip-
tion may be changed to another debt; in which case the
indebtment discharged by the former appropriation of the
money is revived?

§ 533. Where neither party has applied the payment, but
it is left to be appropriated by law, the general principle
adopted by the American Courts, is to apply it as we have

_already stated, according to the intrinsic justice and equity of
the case. But this principle of application is administered by
certain rules, found by experience usually to lead to equitable
results. It has sometimes been held, that the appropriation
ought to be made according to the interest of the debtor, such
being his presumed intention. This is the rule of the Roman
law, and probably is the law of modern continental Europe ; 3
and it has been recognized in several of the United States.‘

 

Debtor and Creditor, p. 406-408 ; Mills v. Fowkes, 5 Bing. N. C. 455, per
Coltman, J.

1 Mayor, &c. of Alexandria v. Patten, 4 Cranch, 317; Baker v. Stackpoole,
9 Cowen, 420, 486. And see Marsh v. Houlditch, cited } m Chitty on Bills,
p. 437, note (c), 8th edit.; [Upham v. Lefavour, 11 Met. 174, 184; Watt
v. Hoch, 25 Penn. State R. 411.]

? Rundlett ». Small, 12 Shepl. 29. And see Codman v. Armstrong, 5
Shepl. 91; Chancellor v. Schott, 23 Penn. State R. 68. Where payments
are made on account of illegal sales of intoxicating liquor, the debtor can-
not afterwards recall them and have them appropriated to other and legal
debts. Caldwell v. Wentworth, 14 N. H. 431.]

8 Poth. Obl. Part 8, ch. 1, art. 7, § 580; 1 White’s New Recopil. B. 2,
tit. 11, pp. 164, 165; Van Der Linden’s Laws of Holland, B. 1, ch. 18, sec. 1,
Henry’s edit. p. 267; Grotius, Introd. to Dutch Jurisp. B. 3, ch. 39, sect. 15,
p- 458, Herbert’s Tr; ; Clayton’s case, in Devaynes v. Noble, 1 Meriv, 605,
606; Baker v. Stackpoole, 9 Cowen, 435; Civil Code of France, Art. 1253-
1256; Gass v. Stinson, 3 Sumn. 99, 110.

4 Patten v. Hull, 9 Cowen, 747, per Cowen, J.; Civil Code ot Louisiana,
Art. 2159-2161,
PART IV.] PAYMENT. 587

But, on the other hand, the correctness of this rule, as one
of universal application, has been expressly denied by the
highest authority. For, as, when a debtor fails to avail
himself of the power which he possesses, in consequence of
which that power devolves on the creditor, it does not appear
unreasonable to suppose, that he is content with the manner
in which the creditor will exercise it; so, if neither party
avails himself of his power, in consequence of which it
devolves on the Court, it would seem equally reasonable to
suppose that both were content with the manner in which
the Court will exercise it; and that the only rule, which it
can be presumed that the Court will adopt, is the rule of
justice and equity between the parties! Therefore, where a
general payment is made without application by either party,
and there are divers claims, some of which are but imper-
fectly and partially secured, the Court will apply it to those
debts, for which the security is most precarious.?- So, where
there are items of debt and credit in a running account, in
the absence of any specific appropriation, the. credits will
ordinarily be applied to the discharge of the items of debt
antecedently due, in the order of the account? But this

 

1 Field v. Holland, 6 Cranch, 8, 27,28. And see Chitty v. Naish, 2 Dowl.
P.C. 511; Brazier v. Bryant, Id. 477; Henniker v. Wigg, 4 Ad. & EL. ee,
N.5S.; Cowperthwaite v. Sheffield, 1 Sandf. 8. C. R. 416.

2 Thid.

3 The Postmaster-General v. Furber, 4 Mason, 333; Gass v. Stinson, 3
Sumn. 99, 112; The United States 1. Wardwell, 5 Mason, 82,87; The
United States ». Kirkpatrick, 9 Wheat. 720; Sterndale v. Hankinson, 1 Sim.
393; Smith v. Wigley, 3M. & Scott,174; Thompson v. Brown, 1 M. & Malk.
40. [When accounts are settled yearly, and the balance is each year trans-
ferred to the new account, if no appropriation is made of the payments by
the parties, they must be applied in the order of priority, so that each pay-
ment shall go to discharge the earliest debt. Sandwich v. Fish,'2 Gray,
298, 301; Coleraine v. Bell, 9 Met. 499; Boston Hat Manuf. v. Messinger,
2 Pick. 223; Allcott v. Strong, 9 Cush. 323 ; Upham v. Lefavour, 11 Met.
174; Millikin v. Tufts, 31 Maine, 497; Thompson v. Phelan, 2 Foster, (N.
H.) 339; Shedd v. Wilson, 1 Williams, (Vt.) 478; Truscott v. King, 2 Sel-
den, (N. Y.) 147; Dows v. Morewood, 10 Barb. 183; Harrison v. Johnston,
27 Ala, 445.]
588 LAW OF EVIDENCE. [PART Iv.

rule may be varied by circumstances! Thus, where an
agent renders an account, charging himself with a balance,
and continues afterwards to receive moneys for his princi-
pal, and to make payments, his subsequent payments are
not necessarily to be ascribed to the previous balance, if the
subsequent receipts are equal to such payments.2 Where
the mortgagee of two parcels of land, mortgaged for the
same debt, released one of them for the assignee of the mort-
gagor of that parcel, the money received for the release was
appropriated to the mortgage debt, in favor of an assignee of
the other parcel, notwithstanding the mortgagor was indebted
to the creditor on other accounts. So, if one debt is illegal,
and the other is lawful, or if one debt is not yet payable,
but the other is already overdue, a general payment will be
ascribed to the latter. And if one debt bears interest, and
another does not, the payment will be applied to the debt
bearing interest.6

§ 534. The mere fact, that one of several debts is secured
by a surety, does not itself entitle that debt to a prefer-

 

’ Wilson v. Hirst, 1 Nev. & Man. 746.

2 Lysaght v. Walker, 2 Bligh, N. S. 1.

3 Hicks v. Bingham, 11 Mass. 300; Gwinn v. Whitaker, 1 H. & J. 754.

4 Wright v. Laing, 3 B. & C. 165; 4 D. & R. 783, 8. C.; Ex parte Ran-
dleson, 2 Dea. & Chit. 534; McDonnell v. The Blackstone Canal Co. 5
Mason, 11; Gass v. Stinson, 3 Sumn. 99, 112; Parchman v. McKinney, 12
8.&M.631. [Ifa creditor holds two demands, one lawful and another posi-
tively unlawful, as a claim for usurious interest, he cannot apply a general
payment by the debtor to the illegal demand, although the debtor, if he so
elects, may thus apply it. Rohan v. Hanson,11 Cush. 44; Bancroft v. Du-
mas, 12 Verm. 457; Backman v. Wright, 1 Williams, (Vt.) 187; Caldwell
v. Wentworth, 14 N. Hamp. 437.]

5 Heyward v. Lomax, 1 Vern. 24; Bacon v. Brown, 1 Bibb, 334; Su-
pra, § 580. [Where the debtor is indebted under a several liability, and
also under a joint liability, and makes a payment, there being no evi-
dence that a different appropriation was intended, or that the money was
derived from the fund from which the joint liability was to be met, the
law applies it to discharge the, several liability, that being the appropria-
tion most favorable to the creditor. Livermore v. Claridge, 33 Maine,
428.]
PART LV.] PAYMENT. 589

ence in the appropriation of a general payment. And there-
fore, where there was a prior debt outstanding, and after-
wards a new debt was created, for which a bond was given
with a surety, the creditor was held at liberty to ascribe a
general payment to the prior debt, though the surety was
not informed of its existence when he became bound; for
he should have inquired for himself! But where a guaranty
was expressed to be for goods to be thereafter delivered, and
not for a debt which then existed; and goods were accord-
ingly supplied from time to time, and payments made, for
some of which a discount was allowed for payments in an-
ticipation of the usual term of credit upon such sales ; it was
held, in favor of the surety, that the payments ought to be
applied to the latter account?

§ 5385. And if one of two demands is within the operation
of the Statute ef Limitations, and the other is not, this cir-
cumstance does not prevent the ascription of a general pay-
ment to the former demand, where the debtor himself has
not appropriated it at the time.® So, if one of two bills is
void for want of a stamp, a general payment may still be
applied to it by the creditor.

§ 536. In some cases, the Court, in the exercise of its dis-
cretion, and for the sake of equal justice, will apply general
payments, in a ratable proportion, to all the existing debts.
Thus, if a broker, having sold goods of several principals to
one purchaser, receives from him a general payment in part,
after which the purchaser becomes insolvent, the payment
shall be applied in proportion to each debt.6 So, if the

 

1 Kirby v. D. of Marlborough, 2 M. & §. 18. And see Brewer v. Knapp,
1 Pick. 337; Mitchell v. Dall, 4 G. & J. 361; Plomer v. Long, 1 Stark. 153;
Clark v. Burdett, 2 Hall, N. Y. Rep. 185.

2 Marryatts v. White, 2 Stark. 101.

3 Mills v. Fowkes, 5 Bing. N. C. 455; 3 Jur. 406; Williams v. Griffith, 5
M. & W. 300. [See ante, § 531.]

4 Bigos v. Dwight, 1 M. & Rob. 308.

5 Favenc v. Bennett, 11 East, 36.

VOL. II. 50
590 LAW OF EVIDENCE. [PART IV.

agent blends a demand due to his principal with one due
from the same debtor to himself, and receives a general pay-
ment thereon ;! or if an insolvent assigns all his property for
the benefit of his creditors, and a dividend is paid to one of
them, who holds divers demands against the insolvent ;? or
if several demands, some of which are collaterally secured,
are included in one judgment, and the execution is satisfied
in part;® in these and the like cases, the payment will be
ascribed in a ratable proportion to each debt.

 

1 Barrett v. Lewis, 2 Pick. 128; Cole v. Trull, 9 Pick. 325.

2 Scott v. Ray, 18 Pick. 360; Commercial Bank v. Cunningham, 24 Pick.
270.

3 Blackstone Bank v. Hill, 10 Pick. 129. And see Perris v. Roberts, 1
Vern, 34; 1 Poth. Obl. by Evans, Part 3, ch. 1, art. 7, § 528-535; Shaw
v. Picton, 4 B. & C. 715.
PART Iv.| -PRESCRIPTION. 591

PRESCRIPTION.

§ 537. Prescription, in its more general acceptation, is
defined to be “a title, acquired by possession, had during the
time and in the manner fixed by law.” After the lapse of
the requisite period, the law adds the right of property to
that which before was only possession! 'The subject of pre-
scription is real property ; but the title to corporeal heredita-
ments, derived from exclusive adverse possession, being reg-
ulated by the Statutes of Limitation, of which we have
already treated, under that head, the title by prescription, in
its strictest sense, is applied only to things incorporeal, such
as rents, commons, ways, franchises, and all species of ease-
ments or liberties without profit, which one man may be en-
titled to enjoy in the soil of another, without obtaining any
interest in the land itself?

§ 538. This prescriptive title to things incorporeal was
originally founded on uninterrupted enjoyment for a period
of indefinite antiquity, or beyond the memory of man; and
is termed a positive prescription. "When writs of right were
limited to a fixed period, it was thought unreasonable to
allow a longer time to claims by prescription ; and accord-
ingly prescriptive rights were held indefeasible, if proved to

 

1 Gale & Whatley on Easements, p. 86; Co. Lit. 113 b.

2 See 3 Cruise’s Digest, tit. xxxi. ch. 1, (Greenleaf’s edition, 1856.) The
law of Prescriptions is stated with great clearness by Mr. Best, in his Trea-
tise on Presumptions, ch. iii. p. 87-110. See, also, Mr. Angell’s Treatise on
Adverse Enjoyment. [See McFarlin v. Essex Company, 10 Cush. 304. To
constitute a watercourse from one tract of land to another, there must be
something more than a mere surface drainage over the entire face of the
tract of land, occasioned by unusual freshets or other extraordinary causes,
but the size of the stream is not important, nor need the flow of the water be
constant. Luther v. Winnissimmet Co. 9 Cush. 174; Ashley v. Ashley, 6
Cush. 71.]
592 LAW OF EVIDENCE. [PART Iv.

have existed previous to the first day of the reign of King
Richard I, that being the earliest limitation of writs of
right, and were invalidated if shown to have had a subse-
quent origin. When later statutes reduced the period of
limitation of real actions to a certain number of years, com-
puted back from the commencement of each action, it was’
to have been expected, that the period of legal memory in
regard to prescriptions would have been shortened by the
Courts of law in like manner, upon the same reason ; but it
was not done, and the time of prescription for incorporeal
rights remained as before. This unaccountable -omission
has occasioned some inconvenience in the administration of
justice, and some conflict of opinion on the bench, and in
the profession at large. The inconvenience, however, has
been greatly obviated in practice, by introducing a new kind
of title, namely, the presumption of a grant, made and lost
in modern times; which the Jury are advised or directed to
find, upon evidence of enjoyment for sufficient length of
time. But whether this presumption is to be regarded as a
rule of law, to be administered by the Judges, or merely as
a subject fit to be emphatically recommended to the Jury, is
still a disputed point in England, though now reduced to
little practical importance, especially since the recent statute
on this subject.

 

1 See Gale & Whately on Easements, p. 89-97; Pritchard v. Powell, 10
Jur. 154. By Stat. 2 & 3 W. 4, ¢. 71, § 1, no prescription for any right in
land, except tithes, rents, and services, where the profit shall have been
actually taken and enjoyed by the person claiming right thereto, without
interruption, for thirty years, shall be defeated by showing an earlier com-
mencement. And if enjoyed in like manner for sixty years, the right is
deemed indefeasible and absolute, unless shown to have been enjoyed by
express consent or agreement, by deed or in writing. By § 2, a similar
effect is given to the like enjoyment of ways, easements, and watercourses,
and rights for the period of twenty years, unless defeated in some legal way
other than by showing an earlier commencement; and for forty years, un-
less by consent in writing, as in the preceding section. And by § 3, the en-
joyment of lights for twenty years without interruption, confers an absolute
and indefeasible title, unless it was by consent in writing, as in the other cases.
Thus the enjoyment for the shorter period, in the first two cases, is made a
PART IV.] PRESCRIPTION. 593

§ 539. In the United States grants have been very freely
presumed, upon proof of an adverse, exclusive, and uninter-
rupted enjoyment for twenty years ; it being the policy of the
Courts of law to limit the presumption to periods analogous
to those of the Statutes of Limitation, in all cases where
the statutes do not apply; but whether this was a presump-
tion of law or of fact, was for a long time as uncertain here
as in England, and perhaps may not yet be definitely settled
in every State. But by the weight of authority, as well as
the preponderance of opinion, it may be stated as the general
rule of American law, that such an enjoyment of an incor-
poreal hereditament affords a conclusive presumption of a
grant, or a right, as the case may be; which is to be applied
as a presumptio juris et de jure, wherever, by possibility, a
right may be acquired in any manner known to the law.!

 

presumptio juris of title, excluding only one method of defeating it ; and the
enjoyment for the longer period, in every case, is made a presumptio juris
et de jure, against all opposing proof, except that of consent in writing. See
Best on Presumptions, § 98, p. 116-129.

1 Tyler v. Wilkinson, 7 Mason, 402, per Story, J. And see ante, Vol. 1,
§ 17, and cases there cited; Sims v. Davis, 1 Cheves, 2; 3 Kent, Comm.
pp- 441,442. On this subject, Mr. Justice Wilde, in delivering the opinion
of the Court in Coolidge v. Learned, 8 Pick. 504, remarked as follows:
* That the time of legal memory, according to the law of England, extends
back to the remote period contended for by the plaintiff ’s counsel, cannot be
denied ; but for what reason, or for what purpose, such a limitation should
have been continued down to the present day, we are unable to ascertain.
Cruise says, ‘ that it seems somewhat extraordinary, that the date of legal
prescription should continue to be reckoned from so distant a period.’ And
to us it seems, that forall practical purposes it might as well be reckoned
from the time of the creation. The limitation in question (if it:can now be
called a limitation) was first established soon after the stat. Westm. 2, (18
Edw. 1, c. 39,) and was founded on the equitable construction of that stat-
ute, which provided that no writ of right should be maintained except on
a seisin from the time of Richard I.

“It was held that an undisturbed enjoyment of an easement for a period
of time sufficient to give a title to land by possession, was sufficient also to
give a title to the easement. 2 Roll. Abr. 269; 2 Inst. 238; Rex v. Hud-
son, 2 Str. 909; 3 Stark. on Ey. 1205. Upon this principle, the time of
legal memory was first limited, and upon the same principle, when the limi-
tation of a writ of right was reduced by the statute of 32 Hen. 8, c. 2, to

50 *
594 LAW OF EVIDENCE. [PART Iv.

In order, however, that the enjoyment of an easement in
another’s land may be conclusive of the right, it must have

 

sixty years, a similar reduction should have been made in the limitation of
the time of legal memory. This was required, not only by public policy, to
quiet long continued possessions, but by a regard to consistency, as it would
have been only following up the principle upon which the first limitation was
founded.

“ And of this opinion was Rolle, (2 Roll. Abr. 269,) though he admits
that at his time the practice was otherwise. Why the opinion of this emi-
nent Judge, founded as it was on reasoning so solid and satisfactory, was not
adopted by the Courts, does not appear. But it does appear, that the
principle on which his opinion was founded, was respected, and carried into’
operation in another form. For although the Courts continued to adhere to
the limitation before adopted, yet the long enjoyment of an easement was
held to be a sufficient reason, not only to authorize, but to require the Jury
to presume a grant. And it has long been settled, that the undisturbed
enjoyment of an incorporeal right affecting the lands of another for twenty
years, the possession being adverse and unrebutted, imposes on the Jury
the duty to presume a grant, and in all such cases Juries are so instructed
by the Court. Not, however, because either the Court or Jury believe the
presumed grant to have been actually made, but because public policy and
convenience require that long continued possession should not be disturbed.

“ The period of twenty years was adopted in analogy to the Statute of
Limitations, by which an adverse possession of twenty years was a bar to an
action of ejectment, and gave a promissory title to the land. Thus it ap-
pears, that although prescriptive rights commencing after the reign of Rich-
ard I. are not sustained in England, yet a possession of twenty years only
is sufficient to warrant the presumption of a grant; which is the foundation
of the doctrine of prescription. In the one case, the grant is presumed by
the Court, or rather is presumed by the law, and in the other case, it is pre-
sumed by the Jury, under the direction of the Court. The presumption in
the latter case is in theory, it is true, a presumption of fact, but in practice
and for all practical purposes, it is a legal presumption, as it depends on pure
legal rules; and as Starkie remarks, ‘It seems to be very difficult to say,
why such presumptions should not at once have been established as mere
presumptions of law, to be applied to the facts by the Courts, without the
aid of a Jury. That course would certainly have been more simple, and
any objection, as to the want of authority, would apply, with equal if not
superior force to the establishing such presumptions indirectly through the
medium of a Jury.’

“But however this may be, it is clear that, when the law became settled
as it now is, and a party was allowed to plead a non-existing grant, and the
Jury were bound to presume it, on proof of twenty years’ possession, he
would hardly be induced to set up a prescriptive right; and the limitation
o

PART Iv.] PRESCRIPTION. 595

been adverse, that is, under a claim of title, with the knowl-
edge and acquiescence of the owner of the land, and unin-

 

of legal memory thus became in most cases of very little importance. And
this is probably the reason why the period of legal memory, as it was limited
soon after the statute of Westm. 1, has been suffered to go on increasing to
the present time, although it has long since ceased to be of any practical
utility, and is utterly inconsistent with the principle on which the limitation
was originally founded.

“ The question then is, whether the Courts in this country were not at
liberty to adopt the English law of prescription, with a modification of the
unreasonable rule adhered to by the English Courts in regard to the limita-
tion of the time of legal memory. Certainly the law without the rule of
limitation might have been adopted, and the Courts here had competent
authority to establish a new rule of limitation suited to the situation of the
country. They had the same authority in this respect, that the Courts in
England had to establish the English rule of limitation. This rule could not
be adopted here without a modification, and it was modified accordingly ;
and in conformity with the principle of the English rule of limitation. This
cannot be ascertained with certainty, but it is evident, that the English rule
could not have been adopted, and it is to be presumed, that the period of
sixty years was fixed upon as the time of limitation, in analogy to the statute
of 32 Hen. 8, c. 2, and in conformity with the opinion of Rolle. At what
period of our history the law of prescription was first introduced into prac-
tice in the Courts of Massachusetts, cannot now be determined, but certainly
it was before the time of legal memory, as we understand the limitation of it;
and innumerable pleas of prescriptive rights are to be found in the records
of our Courts. So the cases reported by Dane show that the doctrine of
prescription has been repeatedly recognized and sanctioned by this Court.
3 Dane, 253, c. 79, art. 3, § 19. The only question has been, whether our
time of legal memory was limited to sixty years, or whether it was to extend
to a period beyond which no memory or record goes as to the right in ques-
tion. The general opinion, we think, has been in favor of the limitation of
sixty years ; and we think it decidedly the better opinion. This seems to us
a reasonable limitation, and, as before remarked, it is founded on the prin-
ciple of the English rule of limitation, which was adopted in reference to
the limitation of the writ of right by the statute of Westm. 1. Whether
since the writ of right has been limited to forty years, a similar limitation
of the time of legal memory ought to be adopted, is a question not raised in
this tase, and upon which we give no opinion.” 8 Pick. 508-511. The
conclusiveness of the ‘presumption was again asserted in Sargent v. Ballard,
9 Pick. 251. Afterwards, the point of time being before the same Court, it
was adjudged, that the exclusive uninterrupted use and enjoyment for forty
years, of an incorporeal right affecting another's land, was sufficient to es-
tablish a title by prescription. Melvin v. Whiting, 10 Pick. 295. And
596 LAW OF EVIDENCE, [PART IV.

terrupted ; and the burden of proving this is on the party
claiming the easement. If he leaves it doubtful, whether
the enjoyment was adverse, known to the owner, and unin-
terrupted, it is not conclusive in his favor.

_§ 5389 a. Tt seems, that to constitute an adverse enjoyment
of an incorporeal hereditament, the act of enjoyment must
be of such a character as to afford ground for an action by
the other party. It must be either a direct invasion of his
vested rights, or else consequently injurious to their free
exercise. The foundation of prescriptive title is the pre-
sumed grant of the party whose rights are adversely affected ;
but where it appears that the enjoyment has existed by the
consent or license of such party, no presumption of grant
can be made. Thus, in the case of lights, if the building, in
which they are made, is erected on the party’s own land, and
no building stands on the land of the adjoining proprietor, it
has been held that, against the latter, no right is acquired by
lapse of time.?

 

subsequently, a similar enjoyment for twenty years was held equally effect-
ual. Bolivar Man. Co v. Neponset Manuf. Co. 16 Pick. 241. This rule is
now expressly recognized, in several of the States, by statutes. See Rev.
Stat. Massachusetts, ch. 60, § 27; Rev. Stat. Maine, ch. 147,§14. And it
seems to be either assumed or necessarily implied in the legislation of other
States. See Elmer’s Dig. LL. New Jersey, pp. 314, 317, tit. Limitations, §§
1,16; Den v. McCann, Penningt. 331, 333; 1 Rev. Stat. NM. Carolina, ch.
64, § 1, pp. 371, 372; Rev. Stat. Delaware, 1839, tit. Limitations, § 1, p.
896; 2 LL. Kentucky, p. 1125, tit. Limitations, § 2, (Morehead & Brown’s
edit.) ; Morgan v. Banta, 1 Bibb. 582; Simpson v. Hawkins, 1 Dana, 306;
Clay’s Dig. LL. Alabama, p. 329, § 93; Rev. Stat. Missouri, p. 392, tit.
Limitations, Art. 1,§1 ; 2 Rev. Stat. New York, p. 293, §§ 5,7; 3 Cruise’s
Dig. tit. 31, ch. 1, § 21, note, (Greenleaf’s ed.) See also Shaw v. Crawford,
10 Johns. 236; Johns v. Stevens, 3 Verm. 316. The case of Bolling v. The
Mayor, &c. of Petersburg, 3 Rand. 563,577, which has been cited to the.
contrary, was a writ of right, respecting a corporeal hereditament, and turned
upon the Statute of Limitations.

1 Sargent v. Ballard, 9 Pick. 251; Davies v. Stevens, 7 C. & P. 570;
Jarvis v. Dean, 3 Bing. 447. 2

2 Pierre v. Fernald, 13 Shepl. 436. Shepley, J., in delivering the opinion
of the Court in this case, said: “ Nothing in the law can be more certain,
PART IV.] PRESCRIPTION. 597

§ 540. There are two kinds of positive prescription: the
one being a personal right, exercised by the party and his
ancestors, or by a body politic and its predecessors; and the
other being a right attached to an hereditament held in fee-
simple, and exercisable only by those who are seised of that
estate ; and this is termed a prescription in a que estate.

§ 541. Nothing can be claimed by prescription, which owes
its origin to, and can only be had by matter of record; but
lapse of time accompanied by acts done, or other circum-

than one’s right to occupy and use his own land, as he pleases, if he does
not thereby injure others. He may build upon it, or occupy it as a garden,
grass-plat, or passage-way, without any loss or diminution of his rights. No
other person can acquire any right or interest in it, merely on account of
the manner in which it has been occupied. When one builds upon his own
land immediately adjoining the land of another person, and puts out windows
overlooking that neighbor’s lands, he does.no more than exercise a legal
right, This is admitted. Cross v. Lewis, 2 B. & C.686. By the exercise of
a legal right he can make no encroachment upon the rights of his neighbor,
and cannot thereby impose any servitude or acquire any easement by the
exercise of such a right for any length of time. He does no injury to his
neighbor by the enjoyment of the flow of light and air, and does not there-
fore claim or exercise any right adversely to the rights of his neighbor. Nor
is there anything of similitude between the exercise of such a right and the
exercise of rights claimed adversely. It is admitted that the defendant can-
not obtain redress by any legal process. In other words, that his rights have
not been encroached upon ; and that he has no cause of complaint. And yet,

while thus situated for more than twenty years, he loses his right to the free
use of his land, because he did not prevent his neighbor from enjoying that
which occasioned him no injury and afforded him no just cause of complaint.

The result of the doctrine is, that the owner of land not covered by buildings,
but used for any other purpose, may be deprived of the right to build upon
it by the lawful acts of the owner of the adjoming land performed upon his
own land and continued for twenty years.

_ “It may be safely affirmed, that the Common Law originally contained no
such principles. The doctrine as stated in the more recent decisions appears
to have arisen out of the misapplication in England of the principle, by
which rights and easements are acquired by the adverse claim and enjoy-
ment of them for twenty years, to a case, in which no adverse or injurious
claim was either made or enjoyed.” And see Parker v. Foote, 19 Wend.

« « 309; Ray v. Lines, 10 Ala. RB. 63.

1 3 Cruise’s Dig. tit. xxxi. ch. 1, §§ 8, 9, (Greenleaf’s edit. 1856.)
598 LAW OF EVIDENCE. [PART Iv.

stances, may warrant the Jury in presuming a grant or title
by record.!. Nor can anything be claimed: by prescription,
unless it might have been created by grant; nor anything,
which the law itself gives of common right. Nor can any-
thing be prescribed for in a que estate, unless it is appendant
or appurtenant to land, and lies in grant?

§ 542. Customary rights differ from prescriptive rights only
in this, that the former are local usages, belonging to all
the inhabitants of a particular place or district; whereas the
latter are rights belonging to individuals, wherever they may
reside? :

§ 543. From this view of the present state of the law on
this subject, it appears that the plea of prescription will be
maintained by any competent evidence of an uninterrupted,
exclusive enjoyment of the subject prescribed for during the
period of twenty years, with claim of title, and with the
actual or presumed knowledge of those adversely interested.
The time of enjoyment by a former owner, whose title has
escheated to the State by forfeiture, cannot be added to the
time of enjoyment by the grantee of the State, to make up
the twenty years; but the times of enjoyment by those in
privity with the claimant, as in the relation of heir and
ancestor, or grantor and grantee, may be thus joined.

 

1 8 Cruise’s Dig. tit.xxxi. ch. 1, § 10, (Greenleaf’s edit. 1856) ; Farrar v.
Merrill, 1 Green]. 17; Battles v. Holley, 6 Greenl. 145; Ante, Vol. 1, § 46;
Best on Presumptions, § 111.

23 Cruise’s Dig. tit. xxxi. ch. 1, §§ 11, 17, 18, 19, (Greenleaf’s edit.
1856.)

3 Id. § 7; Best on Presumptions, § 79.

4 Sargent v. Ballard, 9 Pick. 251. [An adverse occupation of' a fishery
by A for a number of years, but afterwards abandoned, cannot be added to
a subsequent occupation by B, to give B a prescriptive right, although A,
after such abandonment, released all his right in the fishery to B. Nor will
the occupation théreof by B for several years, while in the employment of
A, give B any rights by prescription against C, although A claims adversely
to C. McFarlin v. Essex Company, 10 Cush. 804. See also Sawyer v. *
Kendall, Ib. 241; Kilburn v. Adams, 7 Met, 88. Twenty years’ user will
PART IV.] PRESCRIPTION. 599°

§ 544. If the evidence of the claim extends over the
requisite period of time, the prescriptive title will not be
defeated by proof of slight, partial, or occasional variations,
in the exercise or extent of the right claimed. Thus, if a
watercourse is prescribed for to a fulling-mill, but the party
has converted it into a grist-mill;1 or, if the subject of pre-
scription be a towing-path along the banks of a navigable
river, and it has been converted by statute into a floating
harbor,? the right is not thereby lost; for, in the former case,
the substance of the right is the mill, and not the kind of
mill to which the same propelling power was applied; and
in the latter case, the use made by the public was essentially
the same as before, namely, for facility of navigation. So,
proof of the exercise of the right whenever the party had
occasion to do so, as, for example, the right to take ‘clay to
make bricks, is sufficient, without showing that it was in
fact exercised at all times of the year, though it is so alleged
in the plea? Thus, also, the plea will be supported by proof
of a right, larger than the right claimed, if it be of a nature
to include itt And if the prescription, is for a common ap-
purtenant to a house and twenty acres, it will be supported
by proof of a right appurtenant to a house and eighteen
acres But the prescription, being an entire thing, must be
proved substantially as laid ;° and therefore a variance in any
part, material or essentially descriptive, will be fatal. Thus,

 

t

not establish a right by prescription unless the owner of the subject pre-
scribed for is capable of giving by express grant such a right as is claimed
by prescription. Rochdale Canal v. Radcliffe, 12 Eng. Law & Eq. 409.]

1 Lutterel’s case, 4 Co. 86. And see Blanchard v. Baker; 8 Greenl.
253.

2 Rex v. Tippett, 3 B. & Ald. 193; Codling v. Johnson, 9 B. & C. 933.

3 Clayton v. Corby, 8 Jur. 212; 2 Ad. & El. 813, N.S.

4 Bailey v. Appleyard, 8 Ad. & El. 167; Bailiffs of Tewksbury v. Bick-
nell, 1 Taunt. 142; Welcome v. Upton, 6 M. & W. 540, per Alderson, B.;
Buskwood v. Pond, Cro, El. 722.

5 Gregory v. Hill, Cro. El. 531; Rickets v. Salwey, 2 B. & Ald. 360.

6 See ante, Vol. 1, §§ 63, 67, 71, 72; Paddock v. Forrester, 1 Dowl. N. 0.
527; Drewell v. Towler, 3 B. & Ad. 735; [Peardon v. Underhill, 2 Eng.
Law & Eq. 228.]
600 LAW OF EVIDENCE. [PART Iv.

if the prescription is for common for commonable cattle, and
the evidence is of common for only a particular species of
commonable cattle ;1 or, if the prescription pleaded is gen-
eral and absolute, but the proof is of a prescriptive right
coupled with a condition ;? or subject to exceptions ;* or if
the right claimed is of common in a certain close, and it
appears that the claimant has released his title in part of the
land ;* in these, and in the like cases, the plea is not sup-
ported.

§ 545. The claim of a prescriptive right may be defeated
by evidence, showing that it has been interrupted, within the
legal period; but this must be an interruption of the right,
and not simply an interruption of the use or possession
Thus, if estovers for a house be by prescription, and the
house be pulled down and rebuilt, the right is not lost.®
Nor will the right be destroyed by a tortious interruption,
nor by a discontinuance by the lease of a terre-tenant.’ It
may also be defeated by proof of unity of title to the ease-
ment and to the land, to which it was attached, where both
titles are of the same nature and degree; or, by evidence of

 

1 Bull. N. P. 59. And see Rex v. Hermitage, Carth. 241.

2 Gray’s case, 5 Co. 78 6; Lovelace v. Reignolds, Cro. El. 563; Paddock
v. Forrester, 8 M. & G. 903.

3 Griffin v. Blandford, Cowp. 62. e

4 Rotherham v. Green, Cro. El. 593. [So if the prescription is for the
right to empty a drain upon another’s land, if during the twenty years the
drain has been enlarged, deepened, or varied in its course and termination,
the claim cannot be supported. Cotton v. Pocasset Manuf. Co. 13 Met. 429,
433.]
_ 5 Co. Lit. 114 b; 2 Inst. 653,654; Canham v. Fisk, 2 C. & J. 126, per
Bayley, B.; Carr v. Foster,3 Ad. & El. 581,N.S. [Where a party exer-
cises an offensive trade in the same place for more than twenty years, with
no molestation or interruption, except a suspension thereof for two years
before the twenty years elapse, he does not by such suspension, lose his
right, unless it appear that he intended to abandon and not resume the
exercise of such trade. Dana v. Valentine, 5 Met. 8, 18. See Pollard v.
Barnes, 2 Cush. 191.]

64 Co. 87; Cowper v. Andrews, Hob. 89.
72 Inst. 653, 654.
PART IV. ] PRESORIPTION. 601

the final destruction of the subject to which the right was
annexed ;! or, by showing that its commencement and con-
tinuance were by the agreement and consent of the adverse
party, or by his express grant, within the legal period. But
proof of an older grant will not defeat the claim, if it appear
to be in confirmation of a prior right.2 And if the exercise
of the right claimed was by consent of one who had only a
temporary interest in the land, as, for example, a tenant for
life, his negligence in not resisting the claim will not be
allowed to prejudice the owner of the inheritance? The
acquiescence of the owner, however, may be inferred from
circumstances ;* and where the time has once begun to run
against him, the interposition of a particular estate does not
stop it6 ;

§ 546. It is hardly necessary to add, that, though the usage
proved may not be sufficiently long to support the claim of a
right by prescription, yet, coupled with other circumstances,
it may be sufficient to support the plea of title by a lost
grant, which the Jury will be at liberty, and sometimes be
advised to find accordingly.

 

1 Co. Lit. 114 0; 3 Cruise’s Dig. tit. xxxi. ch. 1, §§ 35, 36, (Greenl. ed.
1856); 6 Com. Dig. 88, tit. Prescriprion, G; Morris ». Edgington, 3
Taunt. 24.

2 Addington v. Clode, 2 W. Bl. 989; Biddulph v. Ather, 2 Wils. 23;
Best on Presumptions, § 87.

3 Bradbury v. Grinsell, 2 Saund. 175 d, note by Williams; Daniel v. North,
11 East, 372; Barker v. Richardson, 4 B. & Ald. 579; Runcorn v. Doe, 5
B. & C. 696; Wood v. Veal, 5 B. & Ald. 454. See also Gale & Whatley
on Easements, p. 108-117. So if it was by mutual mistake. Campbell v.
Wilson, 3 East, 294.

4 Gray v. Bond, 2 B. & B. 667.

5 Cross v. Lewis, 2 B. & C. 686; Best on Presumptions, § 89.

6 Bealey v. Shaw, 6 East, 208; Ante, Vol. 1, §§ 17, 45, and cases, there
cited; Best on Presumptions, § 86-90; Gale & Whatley on Easements, p.
93-95.

VOL. Il. 51
602 LAW OF EVIDENCE. [PART Iv.

REAL ACTIONS.

§ 547. Tux principal rules of evidence, applicable to ac-
tions for the recovery of lands and tenements, have already
been considered, under the title of Ejectment; this being
the form of remedy pursued in most of the United States.
But in several of the States, this remedy has been essentially
modified; as in South Carolina, where its fictions are abol-
ished, and an action of “trespass to try titles” is given by
statute; and in Alabama, where a similar action, or a writ
of ejectment, is given, at the election of the party. In other
States, namely, in Georgia, Iowa, Texas, California, and Eou-
isiana, the remedy in this, as in all other civil cases, is by
petition or complaint, in which the entire case of the plaintiff
is fully and distinctly stated, and is answered by the defend-
ant, much in the manner of proceedings in Equity. In
others, as in Maine, New Hampshire, Connecticut, and Illinois,
the forms of action known to the Common Law, are all
recognized, but the remedies in most frequent use are the
writ of right, the writ of dower unde nihil habet, the writ of
formedon, in the very few cases of entailments which now
occur, and especially a writ, properly termed a writ of entry
upon disseisin. This last is now almost the only remedy
resorted to, except for dower, since the limitation of all real
actions and rights of entry, in all the States last mentioned,
except Connecticut, as well as in most others, is now reduced
to one uniform period of twenty years. In Connecticut the
limitation is fifteen years, and in one or two other States the
period is still shorter?

§ 548. There is diversity in the laws of the several States

 

1 See 3 Cruise’s Dig. (Greenleaf’s edition, 1856,) sub sine, for a synopsis
of the Statutes of Limitation of Real Actions in the several States.
PART Iv.] REAL ACTIONS. 603

on another point, namely, the remedy for mesne profits. In
some States, this remedy is by an action of trespass, as at
Common Law. In others, as in Massachusetts, Maine, and
Illinois, and, to a limited extent, in Vermont, the damages for
mesne profits are assessed by the Jury, in the trial of the
writ of entry, the real action being thus changed by statute
into a mixed action. In Pennsylvania, North Carolina, South
Carolina, Tennessee, Alabama, Wisconsin, and Missouri, they
are assessed, with various restrictions, by the Jury, in the trial
of the writ of ejectment. In Ohio and Alabama, where the
value of his lasting improvements is claimed by the defend-
ant, and the value of the land, exclusive of the improvements,
is also assessed at the request of the plaintiff, the claim for
mesne profits is merged and barred, by statute, in these
proceedings.

§ 549. The proceedings last mentioned relate to another
feature, peculiar in the law of real remedies of some of the
United States, but unknown in others, namely, the right
of the occupant of land to recover against the true owner,
on eviction by him, the value of the lasting improvements,
popularly termed betterments, which, in good faith, he has
made upon the land. This right, to a certain extent, is a fa-
miliar doctrine in Courts of Equity, and it is freely adminis-
tered whenever the owner, after recovery of the land, resorts
to a bill in Equity against the late occupant, for an account
of the rent and profits; but whether those Courts would sus-
tain a bill, originally brought by the occupant for the value
of his improvements, was, until of late, wholly an open
question, but is now, in one class of cases, settled in favor
of the remedy.1 At Common Law, it is well known that

 

1 See 2 Kent, Comm. p. 334-338; Bright v. Boyd, 1 Story, R. 478. In
this case, which was a bill in Equity, the plaintiff had purchased the prem-
ises in question at a sale, made by the administrator of the defendant's
ancestor, for payment of his debts; but the title being defective, by reason
of illegality in the administrator's proceedings, the defendant, who was the
devisee under a foreign will, had recovered the land from the present plain-
tiff, in an action at law. The present plaintiff, not having had possession of
604 LAW OF EVIDENCE. [PART Iv.

no such claim could be maintained; but the situation of
the United States, as a new country in the course of

 

the land for a sufficient length of time to enable him to claim the value of
his lasting improvements under the statute of Maine, in the action at law,
now filed this bill for that and some other purposes, in the Circuit Court of
the United States. The principal question was discussed by Mr. Justice
Story, in the following terms: “ The other question, as to the right of the
purchaser, bond fide and for a valuable consideration, to compensation for
permanent improvements made upon the estate, which have greatly en-
hanced its value, under a title which turns out defective, he having no
notice of the defect, is one upon which, looking to the authorities, I should
be inclined to pause. Upon the general principles of Courts of Equity,
acting ex aequo et bono, I own that there does not seem to me any just ground
to doubt that compensation, under such circumstances, ought to be allowed
to the full amount of the enhanced value, upon the maxim of the Common
Law, Nemo debet locupletari ex alterius incommodo; or, as it is still more
exactly expressed in the Digest, Jure nature @quum est, neminem cum alte-
rius detrimento et injuria fiert locupletiorem1 I am aware, that the doctrine
has not as yet been carried to such an extent in our Courts of Equity. In
cases where the true owner of an estate, after a recovery thereof at law,
from a bond fide possessor for a valuable consideration without notice, seeks
an account in Equity, as plaintiff, against such possessor, for the rents and
profits, itis the constant habit of Courts of Equity to allow such possessor,
(as defendant) to deduct therefrom the full amount of all the meliorations
and improvements, which he has beneficially made upon the estate; and
thus to recoup them from the rents and profits.2. So, if the true owner of
an estate holds only an equitable title thereto, and seeks the aid of a Court
of Equity to enforce that title, the Court will administer that aid only upon
the terms of making compensation to such bond side possessor for the
amount of his meliorations and improvements of the estate, beneficial to
the true owner8 In each of these cases, the Court acts upon an old and
jpostablched maxim in its jurisprudence, that he who seeks equity must do
equity.4 But it has been supposed that Courts of Equity do not and ought
not to go further, and to grant active relief in favor of such a bond
Jide possessor, making permanent meliorations and improvements, by sus-
taining a bill, brought by him therefor, against the true owner, after he
has recovered the premises at law. I find that Mr. Chancellor Walworth,
in Putnam »v. Ritchie, 6 Paige, 390, 403, 404, 405, entertained this opinion,
admitting, at the same time, that he could find no case in England or Amer-
ica, where the point had been expressed or decided either way. Now,

1 Dig. lib. 60, tit. 17, 1. 206.
22 Story on Eq. Jurisp. § 799 u, § 799 b, §§ 1287, 1288, 1289; Green v. Biddle,
8 Wheat. 77, 78, 79, 80, 81.
" Sher also 2 Story, Eq. Jurisp. § 799 b, and note; Jd. §§ 1287, 1238.
id.
PART IV.] REAL ACTIONS. 605

rapid and even tumultuous occupation, having given rise
to great uncertainties in the titles to land, the rule of the

 

if there be no authority against the doctrine, I confess that I should be most
reluctant to be the first Judge to lead to such a decision. It appears to me,
speaking with all deference to other opinions, that the denial of all compen-
sation to such a bona fide purchaser, in such a case, where he has manifestly
added to the permanent value of an estate by his meliorations and improve-
ments, without the slightest suspicion of any infirmity in his own title, is con-
trary to the first principles of equity. Take the case of a vacant lot in acity,'
where a bond fide purchaser builds a house thereon, enhancing the value of {
the estate to ten times the original value of the land, under a title apparently |
perfect and complete ; is it reasonable or just, that in such a case, the true i
owner should recover and possess the whole, without any compensation what- i
ever to the bond fide purchaser? To me it seems manifestly unjust and in- |
equitable, thus to appropriate to one man the property and money of another,
who is in no default. The argument, I am aware, is, that the moment the
house is built, it belongs to the owner of the land by mere operation of law ;
and that he may certainly possess and enjoy his own. But this is merely
stating the technical rule of law, by which the true owner seeks to hold, what
in a just sense he never had the slightest title to, that is, the house. It is not
answering the objection ; but merely and dryly stating that the law so holds.
But, then, admitting this to be so, does it not furnish a strong ground why
equity should interpose, and grant relief ?

“JT have ventured to suggest, that the claim of the bond side purchaser,
under such circumstances, is founded in equity. I think it founded in the
highest equity ; and in this view of the matter, I am supported by the posi-
tive dictates of the Roman Law. The passage already cited shows it to be
founded in the clearest natural equity: Jure nature cequum est. And the
Roman Law treats the claim of the true owner, without making any compen-
sation under such circumstances, as a case of fraud or ill faith. Certe (say
the Institutes) ilud constat; si in possessione constituto cedificatore, soli
Dominus petat domum suam esse, me solvat pretium materice et mercedes fa-
brorum ; posse eum per exceptionem doli mali repelli; utique si bone Jidei
possessor, qui edificavit. Nam scienti, alienum solum esse, potest objici culpa,
quod edificaverit temere in eo solo, quod intelligebat alienum esse. It isa
grave mistake, sometimes made, that the Roman Law merely confined its
equity or remedial justice on this subject, to a mere reduction from the
amount of the rents and profits of the land.? The general doctrine is fully
expounded and supported in the Digest, where it is applied, not to all ex-
penditures upon the estate, but to such expenditures only as have enhanced

1 Just. Inst. lib. 2, tit. 1, §§ 30, 82; 2 Story on Eq. Jurisp. § 799 b; Vinn. Com. ad.
Inst. lib. 2, tit. 1; Just. § 30, n. 8, 4, pp. 194, 195.
2 See Green v. Biddle, 8 Wheat. 79, 80.
51 *
606 LAW OF EVIDENCE. [PART Iv.

Common Law was found to operate inequitably in very
many cases, and sometimes to work gross injustice; and

 

the value of the estate, (quatenus pretiosior res facta est,)! and beyond what
he has been reimbursed by the rents and profits2 The like principle has
been adopted into the law of the modern nations, which have derived their ju-
risprudence from the Roman Law ; and it is especially recognized in France,
and enforced by Pothier, with his accustomed strong sense of equity, and
general justice and urgent reasoning.3 Indeed, some jurists, and among
them, Cujacius, insist, contrary to the Roman Law, that even a mala fide
possessor ought to have an allowance of all expenses, which have enhanced
the value of the estate, so far as the increased value exists.4

“The law of Scotland has allowed the like recompense to bond jide pos-
sessors, making valuable and permanent improvements; and some of the
jurists of that country have extended the benefit to mala jide possessors to
a limited extent.6 The law of Spain affords the like protection and recom-
pense to bond fide possessors, as founded in natural justice and equity.6
Grotius, Puffendorf, and Rutherford, all affirm the same doctrine, as founded
in the truest principles, ex cequo et bono.7

“ There is still another broad principle of the Roman Law, which is ap-
plicable to the present case. It is, that where a bond fide possessor or pur-
chaser of real estate pays money to discharge any existing incumbrance or
charge upon the estate, having no notice of any infirmity in his title, he is
entitled to be repaid the amount of such payment by the true owner, seeking
to recover the estate from him.8 Now, in the present case, it cannot be
overlooked, that the lands of the testator, now in controversy, were sold for
the payment of his just debts, under the authority of law, although the
authority was not regularly executed by the administrator in his mode of
sale by a non-compliance with one of the prerequisites. It was not, therefore,
in a just sense, a tortious sale; and the proceeds thereof, paid by the pur-
chaser, have gone to discharge the debts of the testator, and so far the lands in
the hands of the defendant (Boyd) have been relieved from a charge, to which
they were liable by law. So that he is now enjoying his lands, free from a

1 Dig. lib. 20, tit. 1, 1.29, § 2; Dig. lib. 6, tit. 1, lL 65; Id. 1.88; Pothier, Pand. lib.
6, tit. 1, n. 48, 44, 45, 46, 48.

2 Dig. lib. 6, tit. 1,1. 48.

8 Pothier, De la Propriété, n. 348-853; Code Civil of France, arts. 552, 555.

4 Pothier, De la Propriété, n. 350; Vinn. ad Inst. lib. 2, tit. 1, 1. 80, n. 4, p. 195.

5 Bell, Comm. on Law of Scotland, p. 189, § 538; Ersk. Inst. b. 8, tit. 1,§ 11; 1
Stair, Inst. b. 1, tit. 8, § 6.

61 Mor. & Carl. Partid. b. 3, tit. 28, 1. 41, pp. 857, 358; Asa & Manuel, Inst. of Laws
of Spain, 102.

7 Grotius, b. 2, ch. 10, §§ 1, 2,8; Puffend. Law of Nat. & Nat. b. 4, ch. 7, § 61;
Rutherf. Inst. b. 1, ch. 9, § 4, p. 7.

8 Dig. lib. 6, tit. 1,1. 65; Pothier, Pand. lib. 6, tit. 1,n.48; Pothier, Dela Propriété,
n. 343.
PART Iv.] REAL ACTIONS. 607

hence several of the States have been led to provide reme-
dies at law, for the protection of honest occupants, and for
securing to them the fruits of their labor, fairly bestowed in
the permanent improvement of the land.

 

charge, which, in conscience and equity, he and he only, and not the pur-
chaser, ought to bear. To the extent of the charge, from which he has been
thus relieved by the purchaser, it seems to me, that the plaintiff, claiming
under the purchaser, is entitled to reimbursement, in order to avoid a cir-
cuity of action, to get back the money from the administrator, and thus sub-
ject the lands to a new sale, or, at least, in his favor, in equity to the old
charge. I confess myself to be unwilling to resort to such a circuity, in
order to do justice, where, upon the principles of equity, the merits of the
case can be reached by affecting the lands directly with a charge, to which
they are ex @quo et bono, in the hands of the present defendant, clearly
liable.

“These considerations have been suggested, because they greatly weigh
in my own mind, after repeated deliberations on the subject. They, how-
ever, will remain open for consideration upon the report of the master, and
do not positively require to be decided until all the equities between the
parties are brought by his report fully before the Court. At present, it is
ordered to be referred to the master to take an account of the enhanced
value of the premises, by the ameliorations and improvements of the plaintiff,
and those, under whom he claims, after deducting all the rents and profits
received by the plaintiff, and those, under whom he claims; and all other
matters will be reserved for the consideration of the Court upon the coming
in of his report.” See 1 Story, R. 494-499. Afterwards, upon the coming
in of the report, by which the increased value of the land, by reason of the
plaintiff ’s improvements, was ascertained at a certain sum, the learned Judge
decreed, that the plaintiff was entitled to that sum, as a lien and charge on
the land; concluding thus: “I wish, in coming to this conclusion, to be
distinctly understood as affirming and maintaining the broad doctrine, as a
doctrine of Equity, that, so far as an innocent purchaser for a valuable con-
sideration, without notice of any infirmity in his title, has, by his improve-
ments and meliorations, added to. the permanent value of the estate, he is
entitled to a full remuneration, and that such increase of value is a lien and
charge on the estate, which the absolute owner is bound to discharge, before
he is to be restored to his original rights in the land. This is the clear result
of the Roman Law; and it has the most persuasive equity, and, I may add,
common sense and common justice, for its foundation. The Betterment
Acts (as they are commonly called) of the States of Massachusetts and
Maine, and of some other States, are founded upon the like Equity, and
were manifestly intended to support it, even in suits at law for the recovery
of the estate.” See 2 Story, R. 607, 608. See also Swan v. Swan, 8 Price,
518; 8 Powell on Mort. 957, note Q., by Coventry.
608 LAW OF EVIDENCE. [PART Iv.

§ 550. There is great diversity also in the modes by which
this object is affected. In some of the States, the value of
the improvements is allowed only by way of set-off to the
claim of the plaintiff for mesne profits. In others the occu-
pant has a remedy by filing a declaration in a special action
on the case, after judgment for possession has been entered
against him in the action of ejectment; in which case the
writ of possession is stayed until a trial is had of the action
for the value of the improvements, and the judgment in the
latter case constitutes a lien on the land. In other States,
upon the trial of the possessory action, the Jury, at the re-
quest of the respective parties, are required to assess, on the
one hand, the increased value of the premises, by reason of
the improvements made by the occupant and those under
whom he claims; and on the other hand, the value of the
land, exclusive of those improvements; and the plaintiff is
put to his election, either to take the land and pay the
ascertained value of the improvements, or to abandon the
land to the tenant, at the price found by the Jury; and the
payments in either case are made by instalments fixed by
law, and enforced by issuing or withholding the writ of pos-
session.

§ 551. The character of the occupants, also, is the subject
of some diversity of legislation. In general, the occupancy
must have been in good faith, and without actual fraud. But
in some States, the right to remuneration for improvements
is given to all occupants, who have been in possession, claim-
ing the exclusive title for a certain number of years; which
of course includes disseisors, as well as those claiming under
them; while in other States, it is restricted to persons claim-
ing under patents, and public grants, and by deeds of con-
veyance ; thus intending to exclude all who knowingly enter
by wrong, and without color of title. In others, again, the
improvements, made after notice of the paramount title, are
expressly excluded from the consideration of the Jury.

§ 552. It is obvious, that in a work like the present, it
would be inexpedient to treat of all these varieties of remedy,
PART IV.] REAL ACTIONS. 609

or indeed to do anything more than to state the very few
general rules of the Common Law, which are recognized in
the absence of any statutory provisions ; referring the reader
to the statutes and decisions of each particular State, for
whatever is peculiar in its own jurisprudence.

§ 553. It is a general rule in all these actions, as we have
already remarked in respect to Ejectments, that the plaintiff
must recover on the strength of his own title, and not on the
weakness of his adversary’s; and that he must show, that
he has the legal interest, and a possessory title, not barred
by the Statute of Limitations! The same rules also apply
here, which have been already mentioned under the title of
Ejectment, in regard to the method of proving the plaintif’’s
title?

§ 554. In a writ of right, proof of a seisin is necessary, as
well as in other cases; but a title by disseisin is sufficient
to maintain the action, if the tenant cannot show a better
title ;? and the devisee of vacant and unoccupied land has,
by operation of law, a sufficient seisin to maintain this ac-
tion, without an actual entry. Proof of actual perception
of profits is not necessary, the averment of the taking of
esplees not being traversable;° and the tenant’s right of pos-
session is no bar to the demandant’s right of recovery in

 

1 See supra, § 303. The writ of right being now limited to the same
period with writs of entry, the proof of, the right involves, of course, the
proof of a possessory title.

2 See supra, §§ 805, 307-814, 316, 817, 318, 329.

3 Bradstreet v. Clark, 12 Wend. 602; Hunt .v. Hunt, 8 Met. 175; Speed
v. Buford, 3 Bibb, 57; Jackson on Real Actions, p. 280; [Slater v. Rawson,
6 Met. 439; Hubbard »v. Little, 9 Cush. 475; Hough v. Patrick, 26 Vt. 435.
But a mere entry upon land, under a deed defectively executed, not followed
by any acts of ownership or continued possession, will not sustain a writ of
entry. Nichols v. Todd, 2 Gray, 568.]

4 Ward v. Fuller, 15 Pick. 185; Green v. Chelsea, 24 Pick. 71. But if
the land be not vacant and unoccupied, the devisee must prove his own
seisin. Wells v. Prince, 4 Mass. 64.

5 Green v. Liter, 8 Cranch, 246; Ward v. Fuller, 15 Pick. 183.
610 LAW OF EVIDENCE. [PART IV.

this action.) The mise, when joined, puts in issue the whole
title, including the Statute of Limitations; and under it, the
tenant may give in evidence a release from the demandant,
after action brought, or any other matter, either establishing
his own title, or disproving that of the demandant, except a
collateral warranty.2 But if a deed from the demandant to
a stranger is shown, it may be rebutted, by evidence show-
ing, that, at the time of its execution and delivery, the
grantor was disseised, and that therefore nothing passed by
the deed.

§555. The seisin of the plaintiff or demandant, in any
real action, is proved primdé facie, by evidence of his actual
possession, which is always sufficient against a stranger.
Such a possession, with claim of title, is sufficient to enable
a grantor to convey; and the grantee, entering under such a
conveyance, acquires a freehold,* even though the grantor
be a person non compos mentis; the deed in that case being
voidable only, and not void. But no seisin is conveyed by
a naked release.6 A seisin may also be proved by the extent
of an execution on the land of a judgment debtor, which
gives a seisin to the creditor.® If the actual possession is
mixed and concurrent, the legal seisin is in him who has the
title; and a legal seisin also carries with it the possession, if
there is no adverse possession.’ It is sufficient, primd facie,
to prove a seisin at any time anterior to the period in ques-
tion, since it will be presumed to continue, until the contrary
is shown.8

 

! Jackson on Real Actions, pp. 282, 283.

2 Ten Eyck v. Waterbury, 7 Cowen, 51; Poor v. Robinson, 10 Mass. 131,
184,

3 Knox v. Kellock, 14 Mass. 200.

4 Newhall v. Wheeler, 7 Mass. 189, 199; Higbee v. Rice, 5 Mass. 845,
852; Ward v. Fuller, 15 Pick. 185.

5 Wait v. Maxwell, 5 Pick. 217; Kennebec Prop’rs v. Call, 1 Mass. 483.

6 Langdon v. Potter, 3 Mass. 215.

7 Codman v. Winslow, 10 Mass. 146; Kennebec Prop’rs v. Call, 1 Mass.
488, 484.

8 Kennebec Prop’rs v. Springer, 4 Mass. 416; Brimmer v. Long Wharf
Prop’rs, 5 Pick. 181, 185.
PART IV.] REAL ACTIONS. 611

§ 556. The plea of nul disseisin, in a writ of entry, puts
in issue ‘the legal title to the land, or, in other words, the
seisin on which the demandant has counted, and the lawful-
ness of the tenant’s entry.) If, therefore, it is pleaded in bar
of an action brought by a trustee against the cestui que trust,
it entitles the demandant to recover2 Under this issue, the
tenant cannot avail himself of any objection to the form of
the action ;° he cannot give non-tenure in evidence ;* nor
show, that he is but a tenant at will; nor give in evidence
the title of a stranger under which he does not claim, nor
though he claims to hold as his servant;® nor a title ac-
quired by himself by conveyance from a third person since
the commencement of the action.’ But under this issue, he
may show a conveyance from the demandant or his ancestor
to a stranger, for the purpose of disproving the demandant’s
allegation of seisin;* and the demandant, as has already
been remarked, in the case of a writ of right, may rebut this
evidence by proof, that, at the time of the conveyance,

 

1 Jackson on Real Actions, pp. 5,157; Green v. Kemp, 13 Mass. 515,
520; Wolcott v. Knight, 6 Mass. 418, 419.

2 Russell v. Lewis, 2 Pick. 508, 510.

3 Green v. Kemp, 13 Mass. 515, 520.

4 Higbee v. Rice, 5 Mass. 532, per Parsons, C. Tee Roberts v. Whiting,
16 Mass. 186; Alden v. Murdock, 13 Mass. 256, 259 ; [Washington Bank
v. Brown, 2 Met. 293; Wheelwright v. Freeman, 13 ‘lb. 155; Burridge v.
Fogg, 8 Cush. 184.]

5 Thid.; Pray v. Pierce, 7 Mass. 381.

6 Mechanics’ Bank v. Williams, 17 Pick. 488; Stanley v. Perley, 5 Greenl.
369; Shapleigh v. Pilsbury, 1 Greenl. 271; Heath v. Knapp, 4 Barr, 230.

7 Andrews v. Hooper, 13 Mass. 472, 476; [Curtis v. Francis, 9 Cush.
427; Tainter v. Hemmenway, 7 Ib. 573. Nor is it a defence to a writ of
entry that the tenant is the owner of an easement in the demanded prem-
ises and therefore has a right, as against the demandant, to use it forever as
a passage-way. Morgan v. Moore, 3 Gray, 322; nor that the demandant
holds the land subject to a resulting trust in his (the tenant’s) favor. Crane
v. Crane, 4 Gray, 323. But the demandant is not precluded from main-
taining his writ by having mortgaged the land pending the action. Wood-
man v. Smith, 37 Maine, 21.]

8 King v. Barns, 13 Pick. 24, 28; Stanley v. Perley, 5 Greenl. 369; Hall
v. Stevens, 9 Met. 418; Noyes v. Dyer, 12 Shepl. 468; Cutler v. Lincoln,
3 Cush. 125; [Bruce v. Mitchell, 39 Maine, 390.]
612 LAW OF EVIDENCE. [PART Iv.

the grantor was not seised, and so nothing passed by the
deed.} :

§ 557. Where the tenant claims by a disseisin, ripened
into a good title by lapse of time, he must show an actual,
open, and exclusive possession and use of the land as his
own, adversely to the title of the demandant. It must be
known to the adverse claimant, or be accompanied by cir-
cumstances of notoriety, such as erecting buildings or fences
upon the land, from which he ought and may be presumed to
know, that there is a possession adverse to his title. Buta
fence made by the mere felling of trees on a line, lapping one
‘upon another, is not sufficient for this purpose ;? much less
is the running and marking of lines by a surveyor, under the
direction of one not claiming title ; nor the occasional cutting
of the grass. An entry and occupancy under a deed of con-
veyance from a person without title, will constitute a dissei-
sin of the true owner ;° extending to the whole tract described

’

 

1 Knox v. Kellock, 14 Mass. 200; Wolcott v. Knight, 6 Mass. 418; Supra,
§ 554.

2 Kennebec Prop’rs v. Springer, 4 Mass. 416; Doe v. Prosser, Cowp.
217; Kennebec Prop’rs v. Call, 1 Mass. 483; Little v. Libby, 2 Greenl. 242;
Poignard v. Smith, 6 Pick. 172; Norcross v. Widgery, 2 Mass. 506; Supra,
§ 311; Bryon v. Atwater, 5 Day, 181, 188, 189; Mitchell v. Warner,
5 Conn. 521; Teller v. Burtis, 6 Johns. 197; [Stearns v. Hendersass,
9 Cush. 497. To maintain a title by disseisin it is not enough to show that
the legal owner had actual knowledge of, and assented to, acts of owner-
ship upon his lands, unless the acts are of such a nature as to work a dis-
seisin. Cook v. Babcock, 11 Cush. 210. See, also, Slater v. Jepherson,
6 Ib. 129; Arnold v. Stevens, 24 Pick. 106; Smith v. Lloyd, 25 Eng. Law
& Eq. R. 492; Putnam Free School v. Fisher, 88 Maine, 324. A wife has
no such privity of estate with her husband in land of which he died in an
adverse possession to the real owner, that her continued adverse possession
after his decease can be tacked to his to give her a complete title by dis-
seisin. Sawyer v. Kendall, 10 Cush. 241. See also Cruise’s Digest, tit. 1,
§ 82-84, vol. 1, p. 53, [* 52]; Greenleaf’s 2d edit. 1856, and notes.]

3 Coburn v. Hollis, 3 Met. 125.

4 Kennebec Prop’rs v. Springer, 4 Mass. 416.

® Warren v: Child, 11 Mass. 222; Northrop v. Wright, 7 Hill, N. Y. Rep.
476, 487-489, per Walworth, Ch. The party, thus in possession, may take
PART IV.] REAL ACTIONS. 618

in the conveyance, if the deed is registered; because the

extent of the disseisor’s claim may be known by inspection

of the public registry But an entry under a registered

deed, and the payment of taxes assessed upon the land, is

not sufficient evidence of a disseisin, unless there was also a

continued and open possession.2~ Where an inclosure of the

land by fences is relied upon, it must appear, that the fences

were erected with that intent, and not for a different pur-

pose, such as the inclosure and protection of other lands

of the party; of which the Jury are to judge.? So, if the

owner of a parcel of land should, through inadvertency, or / Zc¢! 41+ ¢!
ignorance of the dividing line, include a part of the ad-/ GPG
joining tract within his inclosure, it is no disseisin of the
true owner.

§ 558. The evidence of disseisin may be rebutted by proof
that the disseisor had consented to hold under the disseisee ;
or, that he had abandoned his possession.2 But a mere
mistake of the party in possession, which, as we have just
seen, will not constitute a disseisin, will not, for the like
reason, amount to proof of an abandonment of his posses- ‘
sion.

§ 559. Where the tenant, by the laws of the State is
allowed a compensation for the lasting improvements made
by him on the land, the evidence is to be directed, not to the

 

a deed from a hostile claimant, for the mere purpose of quieting his title,
without thereby abandoning his character of an adverse possessor. Ibid.
See also, Blight v. Rochester, 7 Wheat. 535; Fox v. Widgery, 4 Greenl.
214.

1 Kennebec Prop’rs v. Laboree, 2 Green]. 275.

2 Little v. Megquier, 2 Greenl. 176; Bates v. Norcross, 14 Pick. 224.

3 Dennett v. Crocker, 8 Greenl. 239. And see Weston v. Reading, 5
Conn. 257, 258.

4 Brown v. Gay, 3 Greenl. 126; Gates v. Butler, 3 Humphr. 447.

5 Small v. Proctor, 15 Mass. 495.

6 Ross v. Gould, 5 Greenl. 204.

VOL. I. 52
614 LAW OF EVIDENCE. [PART Iv.

amount of his expenditures, but to the present increased
value of the premises, by reason of the improvements. And
these ordinarily consist of buildings, wells, valuable trees
planted by the tenant, durable fences, and other permanent
fixtures.
PART IV.] REPLEVIN. 615

REPLEVIN.

§ 560. Tuts action lies for the recovery, in specie, of any
personal chattel which has been taken and detained from the
owner’s possession, together with damages for the detention ;
unless the taking and detention can be justified or excused,
or the right of action is suspended or discharged. _ It lies at
Common Law, not only for goods distrained, but for goods
taken and unjustly detained for any other cause whatever ;
except that where goods are taken by process of law,’ the
party against whom the process issued cannot replevy them ;
but if the goods of a stranger to the process are taken, he
may replevy them from the sheriff?

 

1 Hammond’s Nisi Prius, p. 372. [If an action of replevin is dismissed
for informality in the replevin bond, and judgment is given for the defendant
for a return, and the plaintiff returns the property to the place whence he
first took it, he may afterwards maintain another action of replevin for the
same property, against the same defendant, upon the original unlawful tak-
ing, although the defendant has not taken out a writ of return, nor actually
received the property under the judgment in the first action. Walbridge v.
Shaw, 7 Cush. 560; Fisher v. Whoollery, 25 Penn. State R. 197. Replevin
will lie for such articles as “ mills, barns, steam-engines, offices, and sheds.”
Such articles may, or may not, be fixtures, and whether they are or not, is
matter of evidence, and need not be stated in the pleading. Brearley v.
Cox, 4 Zabr. (N. J.) 387. In such a suit the affidavit must aver that the
property in questioh is personal estate. Chatterton v. Saul, 16 Ill. 149.]

2 Gilbert on Replevin, p. 141; Rooke’s case, 5 Co. 99; Callis on Sewers,
p.197; Clark v. Skinner, 20 Johns. 470. This point is treated ably and
with deep research, in 12 Am. Jurist, pp. 104, 117, where the above author-
ities with others are reviewed. See also Allen v. Crary, 10 Wend. 349;
Seaver v. Dingley, 4 Greenl. 306. In New York, the right of a stranger to
replevy goods taken by the sheriff, is limited to goods not in the actual pos-
session of the judgment debtor at the time of the taking. Thompson »v.
Button, 14 Johns. 84; Judd v. Fox, 9 Cowen, 259.

[In the cases of Richardson v. Reed, and Skilton v. Winslow, 4 Gray, 441,
the question was whether replevin could be maintained against a creditor at
616 LAW OF EVIDENCE. [PART IV.

§ 561. Where the issue raises the question of title, the
plaintiff must prove, that at the time of the caption he had

 

whose suit an attachment was made of goods not the property of his debtor,
either alone or jointly with the attaching officer, and it was decided that the
action would not lie. The opinion of the Court, by Metcalf, J., was as fol-
lows: “Though an officer who attaches, and a plaintiff who directs him to
attach A’s goods, on a writ against B, are joint trespassers, and may be sued
jointly in an action of trespass or trover, yet they cannot be sued jointly in
an action of replevin. The grounds and incidents of a replevin suit are
incompatible with the joinder of the creditor and officers as defendants. The
writ of replevin assumes that the goods which are to be replevied have been
taken, detained or attached by the defendant, and are in his possession or
under his control; and it directs that they shall be replevied and delivered
to the plaintiff, provided he shall give bond conditioned, among other things,
to restore and return the same goods to the defendant, and pay him dam-
ages, if such shall be the final judgment in the action. But attached goods
are in the legal custody and possession of the officer only. The attaching
creditor has no property in them, general or special; no right to the pos-
session of them; and no right of action against a third person who may take
them from the officer or destroy them. Ladd v. North, 2 Mass. 516. How
then can the goods be returned, on a writ of return or reprisal, to him who
never had possession of them, nor the right of possession? Or how can he
be entitled to damages for the taking and detaining of goods in which he
had no property ?

“ The plaintiff’s counsel cited Allen v. Crary, 10 Wend. 349, as an author-
ity for sustaining these actions. + In that case the plaintiff, whose goods had
been taken on an execution against a third person, maintained replevin
against the judgment-creditor who directed the officer to take the goods.
The Court proceeded on the ground that, as both the officer and creditor
were trespassers, replevin would lie against either of them, because it would
lie wherever trespass de bonis asportatis would. And in a subsequent case
in the same State, the Court maintained an action of replevin against the offi-
cer and creditor jointly. Stewart v. Wells, 6 Barb. 79. But we cannot ad-
mit the position that replevin will lie wherever trespass de bonis will. The two
actions are not, in all cases, concurrent. By the Common Law, replevin
cannot be maintained where trespass cannot; for, by that law, an unlawful
taking of goods is a prerequisite to the maintenance of replevin. 2 Leigh,
N. P. 1823; Meany v. Head, 1 Mason, 322; Hopkins v. Hopkins, 10 Johns.
873. But trespass will lie in cases where replevin will not. Replevin, being
an action in which the process is partly in rem, will not lie where it is im-
practicable or unlawful to execute that part of the process according to the
precept. Thus, replevin will not lie against him who takes goods and de-
stroys them, or sells and delivers them to a stranger; yet he might be sued
in trespass. So wheré an officer seized A’s property, first on an execution
PART Iv.] REPLEVIN. 617

the general or a special property in the goods taken, and the
right of immediate and exclusive possession! But a mere
servant, or a depositary for safe custody, has not such prop-
erty as will support this action, his possession being that of
the master or bailor.? It is not always necessary to prove
a taking of the goods, since the action may be maintained
against a bailee, by proof of an unlawful detention? But

 

\

against B, and then on an execution against A, it was held by the Court
which decided the case of Allen v. Crary, that although A might maintain
trespass for the first seizure, yet he could not replevy the property; be-
cause he had no right to the possession of it after the last seizure. Sharp
v. Whittenhall, 3 Hill, 576. In that case, and in Brockway v. Burnap, 12
Barb. 351, the former dicta, that replevin would lie wherever trespass de
bonis would, were denied ; and in the latter case it was said that in Allen v.
Crary, the Court, by sustaining replevin against a defendant who had not
the property in his possession, ‘pushed out the analogy between trespass de
bonis asportatis and replevin further than is warranted by the cases.’ See
also Roberts v. Randel, 2 Sandf. 712, 713.

“In our opinion, replevin cannot be maintained, in this Commonwealth,
against a person who has no possession or control of the goods to be re-
plevied ; replevied goods cannot be restored and returned to a person from
whom they were never taken; and such person cannot rightfully be made
a defendant, sole or joint, in an action of replevin.”

1 Co. Lit. 145 6; Gordon v. Harper, 7 T. R. 95 Gates v. Gates, 15 Mass.
810; Collins v. Evans, 15 Pick. 63; Rogers v. Arnold, 12 Wend. 30;
Wheeler v. Train, 4 Pick. 168; Smith v. Williamson, 1 Har. & J. 147; In-
graham v. Martin, 3 Shepl. 373; [Lamb v. Johnson, 10 Cush. 126; Esson
v. Tarbell, 9 Ib. 407; Kimball v. Thompson, 4 Ib. 441; Lockwood v. Perry,
9 Met. 440; Kidd v. Belden, 19 Barb. 266 ; Rockwell v. Saunders, Ib. 473;
Quinn v. Kimball, 23 Penn. Stat. R. 193; Harlan v. Harlan, 15 Ib. 507.)

2 Templeman v. Case, 10 Mod. 25; Waterman v. Robinson, 5 Mass.303;
Ludden »v. Leavitt, 9 Mass. 104; Warren v. Leland, Id. 265; Dunham »v.
Wyckoff, 2 Wend. 280; Miller v. Adsit, 16 Wend. 335. [Nor can an agent,
who is employed by his principal to reccive, pay for, and forward to him
certain goods contracted for by the principal, part of which have been de-
livered to the agent, maintain replevin for the balance not delivered, which
the contractor had promised, but failed to deliver, and which the agent had
paid for. Dixon v. Hancock, 4 Cush. 96. See also Updike v. Henry, 14
Ii. 378. An auctioneer, whowas agent of the owner, sells and delivers goods
on a condition which is not complied with, may maintain replevin therefor.
Tyler v. Freeman, 3 Cush. 261.]

3 F.N. B. (69) G.; Badger v. Phinney, 15 Mass. 359, 362, per Putnam,
J.; Shannon v. Shannon, 1 Sch. & Lefr. 327, per Ld. Redesdale; Baker

52*
618 LAW OF EVIDENCE. [PART IV.

when a taking is to be shown, it must be an actual taking.
Thus, it has been held, that merely entering at the custom-
house, by the agent of the owners, goods already in the pub-
lic stores, and paying the duties thereon, without any actual
removal, but taking a permit for their delivery on payment
of storage, is not such a taking as will support an action of
replevin against the agent.! So this action cannot be main-
tained against a sheriff, who has made an attachment of the
plaintiff’s goods, but has left them in the custody of the
plaintiff as his bailee, without any actual taking and removal
of them.

§ 562. The genera] issue in this action is non cepit, which
admits the plaintiff’s title, and under which it is incumbent
on the plaintiff to prove, that the defendant had the goods,
in the place mentioned in the declaration; for the action
being local, the place is material and traversable® Proof of
the original taking in that place is not necessary, for the

 

v. Fales, 16 Mass. 147; Illsley v. Stubbs, 5 Mass. 284; Seaver v. Dingley,
4 Greenl. 306 ; Galvin v. Bacon, 2 Fairf. 28; [Osgood v. Green, 10 Fos-
ter, (N. H.) 210.] But see Meany v. Head, 1 Mason, 319, 322, that replevin
does not lie without a tortious taking. See also Reeves v. Morris, 1 Armstr.
Macartn. & Ogle, 159.

1 Whitewell v. Wells, 24 Pick. 25.

2 Lathrop v. Cook, 2 Shepl. 414. [Nor can it be maintained against a
pound-keeper who receives and impounds beasts for going at large, and re-
fuses to deliver them to the owner, on demand, unless his fees and those of
the field-driver are paid. Polger v. Hinckley, 5 Cush. 263; Radkin v. Pow-
ell, Cowp. 476. Anda tender of such fees and costs made after the writ of
replevin has been unconditionally put into the hands of the officer for ser-
vice, will not be sufficient to sustain the action. Bills v. Vose, 7 Foster,
(N. H.) 212. Nor can a purchaser maintain replevin for goods purchased
that formed a portion of, and were intermingled with, a larger quantity of
the same kind of goods owned by the vendor, until they are specifically set
apart, or designated in some way as his. Scudder v. Worster, 11 Cush. 573 ;
Dillingham v. Smith, 30 Maine, 370; Winslow v. Leonard, 24 Penn. State
R. 14; Jackson v. Hale, 14 How. (U. 8.) 525. See Neff ». Thompson, 8
Barb. 213.]

3 Weston v. Carter, 1 Sid. 10; 1 Saund. 847, n. (1), by Williams; Mc-

Kinley v. McGregor, 8 Whart. 369; Dover v. Rawlings, 2 M. & Rob.
544,
¥

PART IV.] REPLEVIN. 619

wrongful taking is continued in every place in which the
goods are afterwards detained! But under this issue, the
defendant cannot have a return of the goods; if found for
him; it merely protects him from damages. If he would
defend on the ground that he never had the goods in the
place mentioned, he should plead cepit in alio loco, which is
a good plea in bar of the action This plea does not admit
the taking as laid in the declaration ; and therefore the plain-
tiff must prove such taking, or fail to recover?

§ 563. If the defendant, besides the plea of non cepit, also
pleads property, either in himself or a stranger, and traverses
the right of the plaintiff, which he may do with an avowry
of the taking, the material inquiry will be as to the property
of the plaintiff, which the plaintiff must be prepared to prove,
the onus probandi of this issue being on him; for if the
former issue is found for him, but the latter is either not
found at all, or is found for the defendant, tlie plaintiff can-
not have judgment.*| And where the issue is on the plain-
tiff’s property, his right to the possession, at the time of
taking, is also involved in the issue®

§ 564. An avowry or cognizance of the taking is ordina-
rily necessary, whenever the defendant would obtain judg-
ment for a return of the goods, thereby making himself an

 

1 Walton v. Kersop, 2 Wils. 354; Bull. N. P. 54; 1 Saund. 347 a, note
by Williams; Johnson v. Wollyer, 1 Stra. 507; Abercrombie v. Parkhurst,
2B. & P. 480.

2 Ibid. ; Bullythorpe v. Turner, Willes, 475; Anon. 2 Mod. 199; Wil-
liams v. Welch, 5 Wend. 290; Prosser v. Woodward, 21 Wend. 205.

3 The People v. Niagara, C. P. 2 Wend. 644. [The plea of non detinet
admits the right of property in the plaintiff and only puts in issue the de-
tention by the defendant. Ingalls v. Bulkley, 15 Il]. 224.]

4 5 Com. Dig. 757, tit. Pleader, K. 12; Presgrave v. Saunders, 1 Salk. 5;
Bemus v. Beckman, 3 Wend. 667; Sprague v. Kneeland, 12 Wend. 161;
Rogers v. Arnold, Id. 30; Boynton v. Page, 18 Wend. 425; Clemson »v.
Davidson, 5 Binn. 399; Seibert v. McHenry, 6 Watts, 301; Hunt v. Cham-
bers, 6 Penn. Law Journ. 82; 1 N. Jersey R. 620.

5 Redman v. Hendricks, 1 Sandf. S. C. R. 82; Meritt vs Lyon, 3 Barb.
S. C. R. 110.
620 LAW OF EVIDENCE. [PART Iv.

actor in the suit, and obliging himself to make out a good
title in all respects. "Where the avowry or cognizance is for
rent, it admits, that the property in the goods was in the
plaintiff; but the terms of the contract or tenancy must be
precisely stated, and proved as laid, or the variance will be
fatal! But it is not necessary to prove that all the rent was
due which is alleged; for an allegation of two years’ rent in
arrear will be supported by proof of one only; the substance
of the allegation being, that some rent was in arrear, and not
the precise amount.” J

§ 565. Under the issue of non demisit or non tenuit, which
‘is usually pleaded by the plaintiff, to an avowry for rent in
arrear, the defendant must prove a demise, an agreement for
one being not sufficient; and the demise proved must be
precisely the same as that stated in the avowry.2 But under
this plea the plaintiff ordinarily cannot give in evidence any-
thing which amounts to a plea of nil habuit in tenementis ;
for as the tenant is not permitted directly to deny the title
of his landlord by plea, he shall not be permitted to do it
indirectly, by evidence to the same effect under another
issue.t But where the defendant’s title expired before the
rent became due, or the plaintiff came in under another title,
and had paid rent to the defendant in ignorance of the
defect of his title to demand it, or has been evicted by the
lessor, he may show this under the plea of non tenuit.5 Proof

 

1 Clarke v. Davies, 7 Taunt. 72; Brown v. Sayce, 4 Taunt. 320; Phillpot
v. Dobbinson, 6 Bing. 104; 3 M. & P. 320; Cossey v. Diggons, 2 B. & Ald.
546; Davies v. Stacey, 12 Ad. & El. 506; Tice v. Norton, 4 Wend. 663.
See also Jack v. Martin, 14 Wend. 507.

2 Forty v. Imber, 6 East, 434; Cobb v. Bryan, 8 B. & P. 348.

3 Dank v. Hunter, 5 B. & Ald. 322.

4 Parry v. House, Holt’s Cas. 489, and note by the reporter; Alchorne v.
Gomme, 2 Bing. 54; Cooper v. Blandy, 1 Bing. N. C. 45. The rule, that
the tenant shall not deny the title of his landlord, applies only where there
is a tenancy in fact. Brown v. Dean, 3 Wend. 208.

5 Gravenor v. Woodhouse, 1 Bing. 38; England -v. Slade, 4 T. R. 682;
Rogers v. Pitcher, 5 Taunt. 209; Fenner v. Duplock, 2 Bing. 10; Duggan
v. O'Conner, 1 Hudson & Brooke, 459; Hoperaft v. Keys, 9 Bing. 613;
Bridges v. Smith, 5 Bing. 411.
PART Iv.] REPLEVIN. 621

of payment of rent to the avowant is always primd facie
evidence that the title is in him?

§ 566. The plea of riens in arrear admits the demise as
laid in the avowry, putting in issue only the fact, that noth-
ing is due ; if, therefore, as has just been stated, the avowant
proves that any rent is due, he will be entitled to recover,
though he should fail to prove that all is due which is al-
leged Under this issue, the plaintiff may prove that he
has paid the rent in arrear to one who had a superior title,
such as a prior mortgagee of the lessor,3 or a prior grantee of
an annuity or rent charge.‘

§ 567. The allegation in the cognizance, that the conusor
made the distress as bailiff to another, is traversable ; but it
may be proved by evidence of a subsequent assent to the
distress, by the person in whose behalf it was made} If it
were made by one of several parceners, joint-tenants, or ten-
ants in common, in behalf of all, no other evidence will be
necessary, the title itself giving an authority in law to each
one, to distrain for all.6 If the conusor justifies as bailiff of
an executor, for rent due to the testator, the plea will be sup-
ported by proof of a distress in the name of the testator, and
by his previous direction, but made after his death, and after-
wards assented to by the executor.’

 

1 Johnson v. Mason, 1 Esp. 90, 91; Knight v. Bennett, 3 Bing. 361; Mann
v. Lovejoy, Ry. & M. 355.

2 Hill v. Wright, 2 Esp. 669; Cobb v. Bryan, 3 B. & P. 348; Bloomer »v.
Juhel, 8 Wend. 449; Harrison v. Barnby, 5 T. R. 248; Waltman’v. Allison,
10 Barr, 464.

3 Johnson v. Jones, 9 Ad. & El. 809; Pope v. Biggs, 9 B. & C. 245.

4 Taylor v. Zamira, 6 Taunt. 524. And see Stubbs v. Parsons, 3 B. &
Ald. 516; Carter v. Carter, 5 Bing. 406; Dyer v. Bowley, 2 Bing. 94; Al-
chorne v. Gomme, 2 Bing. 54; Sapsford v. Fletcher, 4 T. R. 511.

5 Lamb ». Mills, 4 Mod. 378; Trevilian v. Pine, 11 Mod. 112; 1 Saund.
347 c, note (4), by Williams.

6 Leigh v. Shepherd, 2 B. & B. 465.

7 Whitehead v. Taylor, 10 Ad. & El. 210.
622 LAW OF EVIDENCE. [PART Iv.

§ 568. Where the avowry is for damage feasant, with a
plea of title in the defendant to the locus in quo, which is
traversed, the evidence will be the same as under the like
plea of title in an action of trespass quare clausum fregit.
And in general, whatever right is pleaded, the plea must be
maintained by proof of as large a right as is alleged. If a
larger right be proved, it will not vitiate; but proof of a
more limited right will not suffice.2 And if an absolute right
is pleaded, and the right proved is coupled with a condition
or limitation, the plea is not supported; but evidence of an
additional right, founded on another and subsequent consid-
eration will not defeat the plea. If issue is taken on the
averment, that the cattle distrained were levant and couchant,
and the evidence is, that only part of them were so, the aver-
ment is not proved.*

§ 569. A tender, whether of rent, or of amends for damage
by cattle, if made before the taking, renders the distress un-
lawful ; and if made after the distress, but before impound-
ing, it renders the detention unlawful.2 But it must appear,
that the tender, if not made to the party himself, was made
to a person entitled to receive the money in his behalf; for if
it was made to one who was not his receiver, but only his
bailiff to make the distress, or, to his receiver’s agent, it is
not sufficient.6 And a tender, even to a receiver, is bad, if

 

1 [An avowry justifying the taking of the cattle damage feasani, is suffi-
cient, without justifying the detention. Osgood v. Greene, 10 Foster, (N. H.)
210.]

2 Bull. N. P. 59, 60; Supra, tit. Prescrierion, § 544; Johnson v. Tho-
roughgood, Hob. 64; Bushwood v. Pond, Cro. El. 722; Bailiffs of Tewks-
bury v. Bricknell, 1 Taunt. 142.

3 Bull. N. P. 59; Gray’s case, 5 Co. 79; Cro. El. 405, C. S.; Lovelace ».
Reynolds, Cro. El. 546; Brook v. Willett, 2 H. Bl. 224.

4 Bull. N. P. 299; 2 Roll. Abr. 706, pl. 41; 1 Saund. 346 d, note by Wil-
liams.

5 The Six Carpenters’ case, 8 Co. 146; Pilkington’s case, 5 Co. 76.

6 Pilkington’s case, 5 Co. 76; Pimm ». Grevill, 6 Esp. 95; Browne v.

Powell, 4 Bing. 230.
PART IV.] REPLEVIN. 623

the principal be present, for in such case it should have been
made to the principal.

§ 570. The party, under whom the defendant makes cog-
nizance as bailiff, is not a competent witness for the defend-
ant, for he comes in support of his own title. But he is
competent to testify for the plaintiff, and therefore the plain-
tiff cannot give in evidence his declarations. And if distinct
cognizances are made for the same goods, under different
parties, not connected in interest, but one of the cognizances
is abandoned at the trial, the party under whom it was made
is thereby rendered a stranger to the suit, and therefore a
competent witness.* A commoner, who claims by the same.
custom as the plaintiff, is not a competent witness in sup-
port of the custom; but where the plaintiff claims by pre-
scription, a person claiming under a like prescription is still
competent to testify for the plaintiff; for his interest at most
is in the question only, and not in the subject-matter or
event of the suit.®

 

1 Gilbert on Replevin, p. 63 ; Pilkington v. Hastings, Cro. El. 813.

2 Golding v. Nias, 5 Esp. 272; Upton v. Curtis, 1 Bing. 210.

3 Hart v. Horn, 2 Campb. 92.

4 King v. Baker, 2 Ad. & El. 333. Buta mere offer to abandon is not
sufficient to render the witness competent. Girdlestone v. McGowran, 1
Car. & Kir. 702.

5 Ante, Vol. 1, §§ 389, 405. [Where several actions of replevin are tried
together by order of the Court, a surety in one of the replevin bonds is a
competent witness to testify in those cases in which he is not interested, in
the same manner as if the actions had been separately tried; and the party
offering such witness cannot be required, before calling him, to substitute
a new surety in his place on the replevin bond. Kimball v. ‘Thompson,
4 Cush. 441.]
624 LAW OF EVIDENCE. [PART IV.

SEDUCTION.!

§ 571. In an action for seduction, the plaintiff must be
prepared to prove, (1.) that the person seduced was his ser-
vant; and (2.) the fact of seduction ; both these points being
put in issue by the plea of not guilty.”

§ 572. (1.) Though the relation of servant to the plaintiff

 

1 For the evidence in an action for criminal conversation with the plain-
tiff’s wife, see supra, tit. ADULTERY, and tit. MARRIAGE.

2 Holloway v. Abell, 7 C. & P. 528. It has been disputed, whether this
action should be in the form of trespass, or case ; but it is now settled, that
it may well be brought in either form. Chamberlain v. Hazlewood, 5 M. &
W. 515; 8 Jur. 1079; 7 Dowl. P. C. 816, S. C.; Parker v. Bailey, 4 D. &
R. 215. See supra, tit. Casr, § 226; Moran v. Dawes, 4 Cowen, 412;
Parker v. Elliott, 6 Munf. 587.

The form of the declaration in Case is as follows: “ For that the said
(defendant) on and on divers days and times after that day and before
the commencement of this suit, debauched and carnally knew one E. F., she
then being the [daughter and] servant of the plaintiff; whereby the said E.
F. became sick and pregnant with child, and so continued for a long time,
to wit, until the day of —— when she was delivered of the child of
which she was so pregnant; by means of all which the said E. F. was una-
ble to perform the business of the plaintiff, being her [father and] master
aforesaid, from the day first aforesaid hitherto, and the plaintiff has wholly
lost her service, and been put to great Saprites for her delivery, cure, and
nursing. To the damage,” &e.

The form in Trespass is thus: “ For that the said [defendant] on ——
and on divers days and times after that day and before the commencement
of this suit, with force and arms assaulted one E. F., she then being the
(daughter and] servant of the plaintiff, and then debauched and carnally
knew the said E. F. whereby [here proceed as in the preceding form, to the
end, concluding thus,] and other wrongs to the plaintiff the said [defendant]
then and there did, against the peace. To the damage,” &c.

Where the injury was done in the house of the father or master, the rem-
edy may be pursued in trespass guare clausum fregit, the seduction being
laid in aggravation of the wrong. 1 Chitty on Plead. 128.

 

 
PART IV.] SEDUCTION. 625

is indispensable to the maintenance of this action, yet it is
not necessary to prove an express contract of service ;! nor
is the amount or value of the service actually performed of
» any importance, if the plaintiff had the right to command the
immediate service, or personal attendance of the party, at the
time of the seduction? If this right existed, it is not material
whether the servant was seduced while at home, or abroad
‘on a visit. Nor is it material whether the servant was a
minor, or of full age; nor whether the relation of master and
servant still continues, it being sufficient if it existed when
the act of seduction was committed? Neither does the con-
current existence of any other relation, such as that of parent
or other relative, affect the action; for such relation will not
aid to support the action, if the party seduced was actually
emancipated and free from the control of the plaintiff when
the injury was committed.

§ 573. It has accordingly been held, that this part of the
issue is maintained by evidence, that the party seduced was
the adopted child of the plaintiff,’ or his niece,® or his daugh-
ter,’ as well as where she was merely his hired servant,’ it

 

1 Bennett v. Allcott, 2T.R.166. [It is sufficient if the relation of master
and servant exist,constructively. Mulvehall v. Milward, 1 Kernan, (N. Y.)
343.]

2 Maunder v. Venn, 1 M. & Malk. 323.

3 Though the father turned the daughter out of doors, upon discovery of
her pregnancy, he may still maintain this action. 8 Steph. N. P. 2353;
[Kendrick v. McCrary, 11 Geo. 603. If a step-daughter leave the house of
her step-father, and is seduced while in the service of a third person, the
step-father cannot maintain his action, although before the birth of the child
she returns to his house, engages in his service, and is there nursed and
attended during her confinement. Bartley v. Richtmyer, 4 Conist. 38.]

‘42 Selw. N. P. 1108, 1104, (10th edit.) ; 3 Steph. N. P. 2351-2353;
[Roberts 6. Connelly, 14 Ala. 235.]

6 Irwin v. Dearman, 11 East, 23. Or step-daughter. Bartley v. Richt-
myer, 2 Barb: 8. C. R. 182; [S. C. 4 Comst. 38.] And see Ingersoll ».
Jones, 5 Barb. S. C. R. 661; [Kelley v. Donnelly, 5 Md. 211.] *

6 Edmondson v. Machell, 2 T. R.4; Manvelle v. Thompson, 2 C. & P.
303.

7 2 Selw. N. P. 1103; Bennett v. Alcott, 2 T. R. 166.

8 Fores v. Wilson, 1 Peake, 55.

VOL. I. 53
626 LAW OF EVIDENCE. [PART IV.

also appearing, that she was actually subject to his com-
mands, and was bound to perform such offices of service or
of kindness and duty as were usually performed by persons
in that relation, and in similar rank in society. So it is held
sufficient, if any acts of service or of duty are performed,
though the party were a married woman, separated from her
husband, and had returned to live with the plaintiff, who is |
her father. The smallest degree of service will suffice, such
as presiding at the tea-table? even though she slept in another
house, or was absent on a visit, if she was still under the
plaintiff’s control? But if she was not in his service in any
of these modes, the father cannot maintain this action,
though he received part of her wages, and she was under
age. If the defendant himself hired her as his own servant,
with the fraudulent intent to obtain possession of her person
and seduce her, this is no bar to the father’s action, though
she was of full age; provided she was in her father’s family
at the time of the hiring; for in such case, the hiring being
fraudulent, the relation of master and servant was never con-
tracted between them.

§ 574. On the other hand, it has been decided, that where
the daughter was in the domestic service of another person,

\

 

1 Harper v. Luffkin, 7 B. & C. 387. This action has also been held to
lie in favor of a widowed mother, living with her daughter who was seduced ;
the daughter being of full age and owning the household establishment, but
performing acts of service to the mother and family. Villepigue v. Shular,
2 Strobh. 462.

2 Carr v. Clarke, 2 Chitty, 261, per Abbott, C. J.; Blaymire v. Hayley,
6 M. & W. 56; Manvell v. Thompson, 2 C. & P. 304; [Knight v. Wilcox,
15 Barb. 279.]

3 Mann v. Barrett, 6 Esp. 32; Holloway v. Abell, 6 C. & P. 528. And
see Anon. 1 Smith, 333; Harris v. Butler, 2M. & W. 542; Martin v. Payne,
9 Johns. 387; Moran v. Dawes, 4 Cowen, 412; Nickerson v. Stryker,
10 Johns. 115; Hornketh v. Barr, 8 S. & R. 36. But see Boyd »v. Bird,
8 Blackf. 118. [See Griffiths v. Teetgen, 28 Eng. Law & Eq. R. 371.]

4 Carr v. Clarke, 2 Chitty, 260; Postlethwaite v. Parkes, 3 Burr. 1878 ;
Grinnell v. Wells, 7 Man. & Gr. 1033.

5 Speight v. Oliviera, 2 Stark. 493.
PART IV.| SEDUCTION. 627

at the time of the injury, though with the intent to return to
her father’s house as soon as she should quit that service,
unless she should go into another, the action cannot be
maintained! Much less can it be maintained where she
had no such intention of returning

§ 575. Though the slightest proof of the relation of master
and servant will suffice, yet, as the action is founded upon
that relation, it must be shown to have existed at the time?
Therefore it has been held, that where the seduction took
place in the lifetime of the father, the action could not be
maintained by the mother, after his decease, though the ex-
penses of the daughter’s confinement fell upon the mother.*
Nor can the mother maintain the action in any case, without
proof of service}

§ 576. Where the daughter was a minor, and under the
father’s control, proof of this alone will suffice to maintain
this part of the issue, service in that case being presumed;
but where she was of full age, the plaintiff ought to be
provided with some additional evidence of service in fact,
though, as has already been stated, slight evidence will
suffice.®

 

1 Blaymire v. Hayley, 6 M. & W. 55. And see Postlethwaite v. Parkes,
3 Burr. 1878 ; Davies v. Williams, 10 Ad. & El. 725, N. S.; [Dain v. Wicoff,
3 Selden, (N. Y.) 191.]

2 Dean »v. Peel, 5 East, 45; Anon. 1 Smith, 333.

3 The allegations of her relation of servant, and the per quod servitium ami-
sit are material; and the omission of them will not be supplied by an aver-
ment that the plaintiff, her father, being of sufficient ability, was compelled
to support her. Grinnell v. Wells, 7 Man. & Gr. 1084.

4 Logan v. Murray, 6 S. & R. 175; [George v. Van Horn, 9 Barb. 523.]
But see Coon v. Moffet, 2 Penningt. 583. ’

5 Satterthwaite v. Dewhurst, 4 Doug. 315; 5 East, 47, n.

6 Nickleson v. Stryker, 10 Johns. 115; Martin v. Payne, 9 Jobns. 387;
Hornketh v. Barr, 8 S. & R. 36; Logan v. Murray, 6 8. & R. 177; Van-
horn v. Freeman, 1 Halst. 322; Mercer v. Walmsley, 5 Harr. & Johns.
27; [Kendrick v. McCrary, 11 Geo. 603; Kelley v. Donnelly, 5 Md.
211]

‘
628 LAW OF EVIDENCE. [PART Iv.

§ 577. (2.) The fact of seduction may be proved by the
testimony of the person herself; but it is not necessary to
produce her, though the withholding of her is open to obser- »
vation.!. Her general character for chastity is considered
to be involved in the issue, and may therefore be impeached
by the defendant by general evidence, and supported by
the plaintiff in the like manner; but she cannot be asked,
whether she had not been previously criminal with other
men” But though the defendant cannot interrogate the
party herself as to acts of unchastity with others, yet he may
call those other persons to testify their own criminal inter-
course with her, and the time and place; but notwithstand-
ing this evidence, if the Jury are satisfied, from the whole
evidence, that the defendant was the father of the child,
their verdict must be for the plaintiff, though perhaps for
diminished damages.

§ 577 a. The mere fact that the defendant has had a crim-
inal connection with the plaintiff’s servant is not alone sufh-
cient to maintain this action, without proof of some injury
thence resulting to the plaintiff; for otherwise, it is in prin-
ciple nothing but the case of an assault upon the servant
without damage to the master; and if such connection were
held to be a loss of service, it is difficult, as a learned Judge
has remarked, to see where it would stop. Therefore, where
a parent brought-an action for the seduction of his daughter,

 

1 Revill v. Satterfit, Holt’s Cas. 451; Cock v. Wortham, 2 Stra. 1054.

2 Bamfield v. Maney, 1 Campb. 460 ; Dodd v. Norris, 3 Campb. 519.
Bate v. Hill, 1 C. & P. 109; Ante, Vol. 1, §§ 54, 458. And see Magrath v.
Browne, 1 Armstr. & Mavartn. 136; Carpenter v. Wahl, 11 Ad. & El. 803.
Where she had been abandoned by her seducer, and in consequence of that
abandonment became ill, whereby her services were lost to the father, it has
been contended that for such a loss of service an action might be maintained ;
but the particular case was disposed of on another point. Boyle v. Brandon,
13 M. & W.738. [But the plaintiff cannot give evidence of the general good
“| character of the person seduced in the absence of any impeaching testimony
by the defence. Haynes »v. Sinclair, 23 Vt. 108.]

3 Verry v. Watkins, 7 C. & P. 308.
PART Iv.] SEDUCTION. 629

then in his service, and it was proved that the defendant had
had connection with her, and also that she had been deliv-
ered of a child, but the Jury found that the child was not the
defendant’s, it was held that the Jury were rightly instructed
to return a verdict for the defendant, there being no loss of
service from his act.!

§ 578. In the defence of this action, under the general
issue, the defendant may not only show, that the person
seduced was not the servant of the plaintiff but he may
also prove, in bar of the action, that the plaintiff was guilty
of gross misconduct, in permitting the defendant to visit his
daughter as a suitor, after he knew that he was a married
man, and had received a caution against admitting him into
his family, or in otherwise conniving at her criminal inter-
course with him?

§ 579. The damages in this action are given not only for

the loss of service, but also for all that the plaintiff can feel '

from the nature of the injury. Therefore, if the plaintiff is
the parent of the seduced, the Jury may consider his loss
of the comfort as well as the service of the daughter, in
whose virtue he can feel no consolation, and his anxiety as
the parent of other children, whose morals may be corrupted
by her example.* The plaintiff may give evidence of the

‘

 

1 Eager v. Grimwood, 34 Legal Obs. 360; 1 Exch. R. 61,8. C. [It is
no defence to an action for seduction, that the offence was rape, and not
seduction. This action will lie although trespass vi et armis might also be
sustained. Furman v. Applegate, 3 Zabr. 28.]

2 Holloway v. Abell, 7 C. & P. 528.

3 Reddie v. Scoolt, 1 Peake, 240; Akerly v. Haines, 2 Caines, 292; Sea-
ger v. Slingerland, Id. 219.

4 Bedford v. McKowl, 3 Esp. 119. And see Tullidge v. Wade, 3 Wils.
18; Andrews v. Askey, 8C. & P.7; Irwin v. Dearman, 11 East, 24; Grin-
nell v. Wells, 8 Scott, N. R. 741; 7M. & Gr. 1033; [Knight v. Wilcox, 18
Barb. 212. But he cannot recover the probable expense of supporting the
illegitimate child, of which his daughter had been delivered. Haynes v.

Sinclair, 23 Vt. 108. He may show the character of his own family and the |:

pecuniary circumstances of the defendant. McAulay v. Birkhead, 13 Ired. ’
53 *
680 LAW OF EVIDENCE. [PART IV.

terms on which the defendant visited his house, and that he
was paying his addresses upon the. promise or with inten-
tions of marriage ;! and the defendant, on the other hand,
may give evidence not only of the loose character and con-
duct of the daughter, but also, as it seems, of the profligate
principles and dissolute habits of the plaintiff himself?

 

28. And damages in such a case for the injury to the parents’ feelings may
be recovered although there is no separate averment thereof in the declara-
tion; such damages being a natural coneeiuente of the principal injury.
Phillips v. Hoyle, 4 Gray, 568.]

1 Elliot v. Nicklin, 5 Price, 641; Tullidge v. Wade, 3 Wils. 18; Brown-
ell v. McEwen, 5 Denio, 367; Capron v. Balmond, 3 Steph. N. P. 2356;
Watson v. Bayless, and Murgaunovt v. Murgatroyd, cited 2 Stark. on Evid.
732, note (¢); Supra, § 269; [Phealing v. Kenderdine, 20 Penn. State R.
354; but the Jury must not award to the father any part of the damages
which belong to the daughter by reason of the breach of contract of marriage.
Ib.] But see Dodd v. Norris, 3 Campb. 519, contra; [Haynes », Sinclair,
23 Vt. 108.]

2 Dodd ». Norris, 3 Campb. 519. But an offer of marriage, after the
Lena: cannot be shown in mitigation of damages. Ingersoll v. Jones, 5
Barb. S. C. R. 661. [A subsequent marriage of the daughter with the
seducer, and an acquittal of the latter on an indictment for the seduction,
may be shown in mitigation of damages. Eichar v. Kistler, 14 Penn. State
R. 282.]
PART IV.] SHERIFF. 631

SHERIFF.

§ 580. Tux law of evidence in actions against any officers,
for misconduct in regard to civil process in their hands for
service, will be treated under this head; the sheriff being the
officer principally concerned in that duty. He is identified,
in contemplation of law, with all his under-officers, and is
directly responsible, in the first instance, for all their acts
done in the execution of process.

§ 581. Actions against sheriffs are either for nonfeasance,
or mere omission of duty; such as, (1.) not serving process;
(2.) taking insufficient pledges or bail; (3.) not paying over
money levied or collected; or, for misfeasance, or improp-
erly doing a lawful act; such as, (4.) suffering the party
arrested to escape; (5.) making a false return; or, for mal-
feasance, or doing an unlawful act, under color of process ;
such as, (6.) extortion; (7.) seizing the goods of one who is
a stranger to the process. These will be considered briefly
in their order.

§ 582, Where the action for any of these causes is founded
on the misconduct of an inferior officer, acting under the
sheriff, his connection with the sheriff must be proved. If he
is an under-sheriff or deputy, recognized by statute as a
public officer, it will be sufficient, primd facie, to show that

 

1 Saunderson v. Baker, 2 W. B. L. 832; Jones v. Perchard, 2 Esp. 507;
Smart v. Hutton, 2 N. & M. 426; 8 Ad. & El. 568, note, S. C.; Anon.
Lofft, 81; Ackworth v. Kempe, 1 Doug. 40; Woodman v. Gist, 8 C. & P.
213; Watson v. Todd, 5 Mass. 271; Draper v. Arnold, 12 Mass. 449;
Knowlton »v. Bartlett, 1 Pick. 271; The People v. Dunning, 1 Wend. 16;
Gorham v. Gale, 7 Cowen, 739; Walden v. Davison, 15 Wend. 575; MIn-
tire v. Trumbull, 7 Johns. 35; Grinnell v. Phillips, 1 Mass. 530.
632 LAW OF EVIDENCE. [PART IV.

he has acted publicly and notoriously in that character But
if he is only a private agent or servant of the sheriff, other
evidence is necessary. In these cases, a warrant is delivered
to the bailiff, authorizing him to serve the process in ques-
tion; and as this is the most satisfactory evidence of his ap-
paintment, it is expedient to produce it, or to establish its
loss, so as to admit secondary evidence of its existence and
contents.2 A paper, purporting to be a copy of the warrant
left with the debtor by the bailiff, is not sufficient, it being
the mere act of the bailiff, and of the nature of hearsay ; nor
will it suffice to produce a general bond of indemnity, given
by the bailiff to the sheriff; for this does not make him the
sheriff’s general officer, but is only to cover each distinct lia-
. bility that he may come under, in regard to every several
warrant But any subsequent act of recognition of the
bailiff’s authority, by the sheriff, such as returning the pro-
cess served by the bailiff, or giving instructions for that pur-
pose, is admissible to establish the agency of the bailiff.t
The bailiff himself is a competent witness to prove the
warrant under which he acted; but it will seldom be expe-
dient for the plaintiff to call him, as he will be liable to cross-
examination by the defendant, in a cause which is virtually
his own?

§ 583, It may also here be stated, that the admissions of an
under-sheriff, or deputy, tending to charge himself, are re-
ceivable in evidence against the sheriff, wherever the under-

 

1 Ante, Vol. 1, §§ 83,92. If the allegation is, that the defendant was
sheriff on the day of delivery of the writ to him, and until the return day
thereof, proof of the former averment is sufficient, the latter being immate-
rial. Jervis v. Sidney, 3 D. & R. 483.

2 Ante, Vol. 1, §§ 559-563, 574, 575, 84, n.

3 Drake v. Sykes, 7 T. R. 113; as explained in Martin v. Bell, 1 Stark.
413.

4 Martin v. Bell, 1 Stark. 413 ; Saunderson v. Baker, 3 Wils. 309; 2 W.
Bl. 832; Jones v. Wood, 8 Campb. 228. The return of a person styling
himself deputy-sheriff, is not of itself sufficient evidence against the sheriff,
of the deputy’s appointment. Slaughter v. Barnes, 3 A. K. Marsh. 413.

5 Morgan v. Brydges, 2 Stark. 314. And see ante, Vol. 1, § 445.
PART Iv.] SHERIFF. 633

officer is bound by the record; and he is thus bound, and the
record is conclusive evidence against him, both of the facts
which it recites, and of the amount of damages, wherever he
is liable over to the sheriff, and has been duly notified of the
pendency of the action, and required to defend it! This
principle applies to all declarations of the under-officer, with-
out regard to the time of making them. But in other cases,
where the record is not evidence against the under-officer, his
declarations seem to be admissible against the sheriff, only
when they accompanied the act which he was then doing in
his character of the sheriff’s agent and as part of the res
geste? or while the process was in his hands for service?
Upon the same general principle of identity in interest, the
declarations of the creditor, who has indemnified the sheriff,
are admissible in evidence against the latter in an action by
a stranger for taking his goods.*

§ 584. (1.) Where the action is against the sheriff for not
serving mesne process, it is incumbent on the plaintiff to
prove the cause of action; for which purpose any evidence
is competent which would be admissible in the suit against
the debtor. Hence the acknowledgment of the debtor that
the debt is justly due, is admissible against the sheriff.6 The

 

1 See ante, Vol. 1, § 180, and note.

2Ibid. See also Vol. 1, §§ 113, 114; Bowsheer v. Cally, 1 Campb. 391,
n.; North v. Miles, Id. 389 ; Snowball v. Goodricke, 4 B. & Ad. 541.

3 Jacobs v. Humphrey, 2 C. & M. 413; 4 Tyrw. 272, S. C.; Mott-v. Kip,
10 Johns. 478; Mantz v. ‘Collins, 4 H. & McHen. 216. In order to render
the admissions of the deputy competent evidence against the sheriff, it is
ordinarily sufficient to prove that he was a deputy of the sheriff, and that
he acted colore officii, at the time, without proving the issuing and delivery
of the precept, under which he professed to act. Stewart v. Wells, 6 Barb.
8. C. BR. 79.

4 Proctor v. Lainson, 7 C. & P. 629.

5 Gunter v. Cleyton, 2 Lev. 85, approved in Alexander v. Macauley, 4 T.
R. 611; Parker v. Fenn, 2 Esp. 477, note; Sloman ». Herne, Id. 695; Riggs
v. Thatcher, 1 Greenl. 68.

6 Gibbon v. Coggon, 2 Campb. 188; Williams v. Bridges, 2 Stark. 42; Slo-
man v. Herne, 2 Esp. 695; Kempland v. Macaulay, 4 T. R. 436; Dyke v.
Aldridge, 7 T. R. 665.
634 LAW OF EVIDENCE. [PART Iv.

plaintiff, must also prove the isswing of process, and the de-
livery of it to the officer. If the process has been returned,
the regular proof is by a copy; if not, its existence must
be established by secondary evidence; and if it is traced
to the officer’s hands, he should be served with notice to
produce it! And here, and in all other cases, where the
issuing of process is alleged, the allegation must be precisely
proved, or the variance will be fatal Some evidence must
also be given of the officer’s ability to execute the process;
such as, that he knew, or ought to have known, that the
person against whom he held a capias was within his pre-
cinct; or, that goods, which he might and ought to have
attached, were in the debtor’s possession.2 The averment
of neglect of official duty, though negative, it seems ought
to be supported by some proof on the part of the plaintiff,
since a breach of duty is not presumed; but from the nature
of the case, very slight evidence will be sufficient to devolve
on the defendant the burden of proving that his duty has
been performed.* The damages will at least be nominal,
wherever any breach of duty is shown; and may be increased,
according to the evidence

§ 585. In defence of actions of this description, where the
suit is for neglecting to attach or seize goods, the sheriff may
show, that there were reasonable doubts as to the ownership
of the goods, and that the plaintiff refused to give him an

 

1 See ante, Vol. 1, §§ 521, 560.

2 Ante, Vol. 1, §§ 63, 64, 70, 73; Phillipson v. Mangles, 11 East, 516;
Bevan v. Jones, 4 B. & C. 403; Bromfield v. Jones, Id. 380; Webb v.
Herne, 1 B. & P. 281. Sce further, Stoddart v. Palmer, 4 D. & R. 624; 8
B. & C. 2; Lewis v. Alcock, 6 Dowl. P. C. 78.

8 Beckford v. Montague, 2 Esp. 475 ; Frost v. Dougal, 1 Day, 128.

4 See ante, Vol. 1, § 78-81.

> Baker v. Green, 2 Bing. 317; Clifton v. Hooper, 8 Jur. 958; 6 Ad. &
El. 468, N. S.; Williams v. Mostyn, 4 M. & W. 145; Marzetti v. Williams,
1B. & Ad. 415. If the deputy-sheriff undertakes to receive the amount of
the debt and costs, on mesne process, and stay the service of the writ, the
sheriff is liable forthwith for the amount received, without any previous
demand. Green v. Lowell, 3 Greenl. 373.
PART 1v.] SHERIFF. 635

indemnity for taking them ;? or, that they did not belong to
the debtor? And where ihe neglect was in not serving a
writ of execution, he may impeach the plaintiff’s judgment
by showing that it is founded in fraud ;* first proving that
he represents a judgment creditor of the same debtor, by a
legal precept in his hands. He may also show, in defence
of such action, that there were attachments on the same
goods prior to that of the plaintiff, for which he stood liable
to the attaching creditors, whose liens still existed, and that
these would absorb the entire value of the goods.2 And his
return to a fiéri facias, setting forth a valid excuse for not
having sold the goods, such as, that they were casually de-
stroyed by fire, or that proceedings were stayed by a Judge’s
order, or the like, is primd facie evidence of the fact, in his
own favor.

§ 586. (2.) As to the action for taking insufficient pledges
or bail. Here, also, though the allegation of the insufficiency
of the sureties is negative in its terms, yet some evidence to
support it must be produced by the plaintiff, though slight
proof will suffice, the fact of their sufficiency being best known
‘to the defendant, who took them ;" and it is a legal maxim, ;
that all evidence is to be weighed. according to the proof

which it is in the power of one side to produce, and in the i

\
: [i
power of the other to contradict.2 To establish the fact of |!

 

1 Marsh v. Gold, 2 Pick. 975; Bond v. Ward, 7 Mass. 123; Perley v.
Foster, 9 Mass. 112. [See also Weld v. Chadbourne, 37 Maine, 221.]

2 Canada v. Southwick, 16 Pick. 556.

3 Pierce v. Jackson, 6 Mass. 242. But he cannot impeach it on any other
ground. Adams v. Balch, 5 Greenl. 188. [Or he may show that an ar-
rangement had been made between himself and the plaintiff, by which he
was to levy his executions upon the real estate exclusively, yielding the per-
sonal property to the other creditors. Weld v. Chadbourne, 37 Maine,
231.]

4 Clark v. Foxcroft, 6 Greenl. 296. See infra, §§ 593, 597.

5 Commercial Bank v. Wilkins, 9 Greenl. 28.

6 Browning v. Hanford, 7 Hill, (N. Y.) Rep. 120.

7 Saunders v. Darling, Bull. N. P. 60.

8 Per Ld. Mansfield, Cowp. 65.
636 LAW OF EVIDENCE. [PART IV.

the insufficiency of sureties, it is admissible to prove, that
they have been pressed for payment of their debts by the im-
portunity of creditors, and have violated their repeated prom-
ises to pay. It is not necessary for the plaintiff to aver
and prove, that the sheriff knew the sureties to be insufficient ;
it is enough primé facie to charge him, if it appears that
they were in fact so at the time when he accepted them?
This liability the sheriff may avoid, by showing that they
were at the time apparently responsible, and in good credit;
or, ‘that he exercised a reasonable and sound discretion in
deciding upon their sufficiency; of which the Jury are to
judge? But their own statement to the sheriff as to their
responsibility is not enough; though they are competent
witnesses for him on the trial.4 On the other hand, the
plaintiff may show, that the sheriff had notice of their insuffi-
ciency, or did not act with due caution, under the cireum-
stances of the case; or, that their pecuniary credit was low,
in their own neighborhoodS And it is not necessary for the
plaintiff to show, that he has taken any steps against the

 

1 Gwyllim v. Scholey, 6 Esp. 100.

2 Concanen v. Lethbridge, 2 H. Bl. 36; Evans v. Brander, Id. 547; Yea
v. Lethbridge, 4 T. R. 433; Sparhawk v. Bartlett, 2 Mass. 188. If the
officer accepts a forged bail-bond, he is liable to the plaintiff, though he
believed it to be genuine. Marsh v. Bancroft, 1 Met. 497.

3 Hindle v. Blades, 5 Taunt. 225; Jefferey v. Bastard, 4 Ad. & El. 823;
Sutton v. Waite, 8 Moore, 27.

4 Thid.

5 Scott v. Waitham, 3 Stark. 168. Bail is still regulated by the Statute
23 Hen. 6, ¢. 10, which has always been recognized in the United States as
Common Law. The first branch of this statute, for it consists of only one
section, requires the sheriffs to ‘‘let out of prison all manner of persons
arrested, or being in their custody, by force of any writ, bill, or warrant, in
any action personal, or by cause of indictment of trespass, upon reasonable
sureties of sufficient persons having sufficient within the counties where such
persons be so let to bail or mainprise,” &c. This clause was introduced for
the benefit of the sheriff; and therefore though he may insist upon two sure-
ties, yet he may admit to bail upon a bond with one surety only. 2 Saund.
61 d, note (5) by Williams. But where he takes but one surety, the sheriff
is responsible for his solvency, at all events. Long v. Billings, 9 Mass. 479 ;
Rice v. Hosmer, 12 Mass. 129, 130; Glezen v. Rood, 2 Met. 490; Sparhawk
v. Bartlett, 2 Mass. 194.
PART IV.] . SHERIFF. 637

bail, in order to establish their insufficiency, as the fact may
be proved by any other competent evidence.

§ 587. (3.) As to the action for not paying over money
levied and collected. The money, in this case, as soon as it
comes into the officer’s hands, is money had and received to
the creditor’s use ; and, where the precept does not otherwise
direct him, he is bound to pay it over to the creditor on the
return day of the process under which it was levied, without
any demand, and earlier if demanded ; upon failure of which,
an action lies.2 The evidence, on the part of the plaintiff,
consists of proof of the receipt of the money by the officer,
and, where a demand is requisite, that it has been demanded.
The most satisfactory proof of the receipt of the money is
the officer’s return on the writ of execution; which is shown
by an examined copy, if the precept has been returned, and
by secondary evidence, if it has not. The return is conclu-
sive evidence against the sheriff, that he has received the
money; but it does not prove, nor will it be presumed, that
the money has been paid over to the creditor. If the money
was levied by an under-officer or bailiff, his connection with
the sheriff must be established by further evidence, as already
has been stated.

§ 588. In the defence of an action for this cause, the sheriff
may show that the goods, out of which he made the money,
were not the property of the judgment debtor, but of a
stranger, to whom he is liable; or that the judgment debtor
had become bankrupt, and that the money belonged to his
assignees; and this, notwithstanding his return, that he had

 

1 Young v. Hosmer, 11 Mass. 89.

2 Dale vy. Birch, 3 Campb. 347; Wilder v. Bailey, 3 Mass. 294, 295;
Rogers v. Sumner, 10 Pick. 387; Longdill v. Jones, 1 Stark. 345. And see
Morland »v. Pellatt, 8 B. & C. 722, ya, 726, per Bailey, J.; Green v. Low-
ell, 8 Greenl. 373.

3 Cator v. Stokes, 1 M. & S. 599.

4 Supra, § 582; Wilson v. Norman, 1 Esp. 154; McNeil v. Perchard, Id.
263. =

VOL. Il. 54
638 LAW OF EVIDENCE. [PART Iv.

levied on the goods of the debtor. He may also show, that
the plaintiff had directed him to apply the money to another
purpose, which he had accordingly done;? or, that it was
absorbed in the expenses of keeping the goods. The amount
due to him, for his collection fees or poundage, is to be de-
ducted from the gross amount in his hands.*

§ 589. (4.) In an action against the sheriff for an escape,
the plaintiff must prove, first, his character as creditor; sec-
ondly, the delivery of the process to the officer; thirdly, the
arrest; fourthly, the escape ; and, lastly, the damages or debt.
If the escape was from an arrest upon execution, the plain-
tiff’s character of creditor is proved by a copy of the judg-
ment; and if the action is brought in debt, the plaintiff, by
the Common Law, is entitled to recover the amount of the
judgment, at all events, and without deduction, or regard to
the circumstances of the debtor. But where the action is
brought in trespass on the case, as it must be where the arrest
was upon mesne process, and it may be where the arrest was
upon execution, the plaintiff must prove his debt, or cause
of action, in the manner we have already stated, in actions
for not serving process.© The process must be proved pre-
cisely as alleged, a material variance being fatal.’ The
delivery of the process to the officer will be proved by his
return, if it has been returned; or by any other competent
evidence, if it has not. The return of cepi corpus will be

 

1 Brydges v. Walford, 6 M. & S. 42; 1 Stark. 389, n.

2 Cornm’rs v. Allen, 2 Rep. Const. Court, S. Car. 88.

3 Twombly v. Hunnewell, 2 Green]. 221.

4 Longdill v. Jones, 1 Stark. 846.

5 Hawkins v. Plomer, 2 W. BI. 1048; Porter v. Sayward, 7 Mass. 277
The Common Law has been altered in this particular in some of the United
States, by statutes, which provide that, in an action of debt for an escape,
the plaintiff shall recover no more than such actual damage as he may prove
that he has sustained. Infra, § 599.

6 Supra, § 584.

7 Supra, § 584, Vol. 1, §§ 68, 64, 70, 73; Phillipson v. Mangles, 11 East,
516; Bromfield v. Jones, 4 B. & C. 380.
PART Iy.| SHERIFF. 639

conclusive evidence of the arrest; and if there has been
no return, the fact of arrest may be proved aliunde, and by
parol! The escape of the debtor is proved by any evidence,
that he was seen at large after the arrest, for any time, how-
ever short, and even before the return of the writ The
difficulty of defining the going at large, which constitutes
an escape, has been felt and acknowledged by Judges.2 Mr.
Justice Buller said, that wherever the prisoner in execution
is in a different custody from that which is likely to enforce
payment of the debt, it is an escape ;* which he illustrated
by the case of a prisoner permitted to go to a horse-race,
attended by a bailiff. And where a coroner having an exe-
cution against a deputy jailer, arrested him, and left him in
the jail-house, neither the sheriff nor any other authorized
person being there to receive him, it was held an escape in
the sheriff; upon the principle, as laid down by Parsons,
C. J., that every liberty given to a prisoner, not authorized
by law, is an escape. If the liberty was given through mis-
take, it seems it is still an escape ;® but if he be taken from
prison through necessity, and without his own agency, in
case of sudden sickness, or go out for the preservation of life
from danger by fire, and return as soon ashe is able, it is
not an escape.’
The damages in this case will hereafter be considered.

§ 590. The party escaping is a competent witness for either
party, in an action for a voluntary escape, for he stands
indifferent ; but where the action is for a negligent escape, he
is not a competent witness for the defendant, to disprove the

 

1 Fairlie v. Birch, 3 Campb. 397.

2 Hawkins v. Plomer, 2 W. BI. 1048; 3 Com. Dig. 642-646, tit. Escape,
c. D.

3 Per Eyre, C. J., 1 B. & P. 27. é

4 Benton v. Sutton, 1 B. & P. 24, 27.

5 Colby v. Sampson, 5 Mass. 310, 312, per Parsons, C. J.

6 Call v. Hagger, 8 Mass. 429.

7 Baxter v. Taber, 4: Mass. 361, 369; Cargill v. Taylor, 10 Mass. 207;
1 Roll. Abr. 808, pl. 5, 6.
640 LAW OF EVIDENCE. [PART Iv.

escape, because he is liable over to the sheriff But though
the count is for voluntary escape, yet under it evidence of a
negligent escape is admissible, for the substance of the issue
is the escape, and not the manner.”

§ 591. In defence of the action for an escape, the sheriff
will not be permitted to show, that the process was irregu-
larly issued ; nor, that the judgment was erroneous; nor,
that the plaintiff knew of the escape, yet proceeded in his
action to judgment, and had not charged the debtor in exe-
cution, though he had returned to the prison ;* nor, that the
plaintiff had arrested the debtor upon a second writ, by an-
other sheriff, and had discharged him without bail.4 But
under the general issue, he may show that the Court from
which the process was issued had no jurisdiction of the
matter, and that therefore the process was void.65 He may
also show, that before the expiration of the term in which
the writ was returnable, but not afterwards, the debtor did
put in and perfect bail, or that he had put in bail, and sea-
sonably rendered himself in their discharge, though no bond
was taken ;® or that the prisoner, while going to jail on
mesne process, was rescued; but not if he was taken in
execution.’ So he may show, that the escape was by fraud
and coven of the plaintiff in interest.6 If he pleads that there
was no escape, this is an admission of the arrest as alleged?

§ 592. (5.) As to the action for a false return. In the case

 

1 See ante, Vol. 1, §§ 394, 404; Cass ». Cameron, 1 Peake, 124; Hunter
v, King, 4 B. & Ald. 210; Sheriffs of Norwich v. Bradshaw, Cro. El. 53;
Eyles v. Faikney, 1 Peake, 143, n.

2 Bovey’s case, 1 Ventr. 211, 217; Bonafous v. Walker, 2 T. R. 126.

3 Bull. N. P. 66, 69.

4 Woodman ». Gist, 2 Jur. 942.

5 Bull. N. P. 65, 66.

6 Pariente v. Plumtree, 2 B. & P. 85; Moses v. Norris, 4 M. & S. 397.

7 May ». Proby, Cro. Jac. 419; 1 Stra. 485; Bull. N. P. 68,

8 Hiscocks v. Jones, 1 M. & Malk. 269. See also Doe v. Trye, 5 Bing.
N.C. 573.

9 Bull. N. P. 67.
PART IY.] SHERIFF. 641

of a false return to mesne process, the plaintiff must prove
the cause of action, the issuing of the process, and the de-
livery of it to the officer, in the same manner as has already
been shown, in the action for not serving mesne process. If
it was a writ of execution, he should produce a copy of the
judgment, and prove the issuing of the execution; of which
the clerk’s certificate in the margin of the record is usually
received as sufficient evidence. The officer’s return must, in
either case, be shown, and some evidence must be adduced
of its falsity ; but slight or primd facie evidence of its falsity
will be sufficient to put the sheriff upon proof of the truth
of his return; such, for example, as showing the execution
debtor to be in possession of goods and chattels, without
proving the property to be in him, when the sheriff is sued
for falsely making a return of nulla bona. If the sheriff has
omitted to seize the goods, in consequence of receiving an
indemnity, the controversy being upon the title of the debtor,
the plaintiff must be prepared with evidence of the debtor’s
property. And if the process was against several, and the
allegation is, that they had goods which might have been
seized, the allegation, being severable, will be supported by
proof, that any one of them had such goods.’

§ 593. In the defence of the action for a false return of
‘nulla bona to a writ of execution, the sheriff may show that
the plaintiff assented to the return, after being informed of
all the cireumstances;* or, where part of the money only
was levied, that the plaintiff accepted that part with intent
to waive all further remedy against the sheriff, and with full

 

1 See Parker v. Fenn, 2 Esp. 477, n. [The plaintiff must show not only
that the return is untrue, in fact, but that he has been damaged thereby.
Nash v. Whitney, 39 Maine, 341.]

2 Magne v. Seymour, 5 Wend. 309. And see Stubbs.v. Lainson, 1 M. &
W. 728. The judgment debtor is a competent witness against the sheriff, in
an action for a false return of nudla bona. Taylor v. The Commonwealth,
3 Bibb, 356.

3 Jones v. Clayton, 4 M. & S. 349.

4 Stuart v. Whitaker, 2 C. & P. 100.

54 *
642 LAW OF EVIDENCE. [PART iV.

knowledge of the facts;1 or, that the plaintiff has lost his
priority, by ordering the levy of his execution to be stayed,
another writ having been delivered to the sheriff;? or, that
the first levy, for not returning which the action is brought,
was fraudulently made, and so void;# or, that the plaintiff’s
judgment was entered up by a fraud and collusion with the
debtor, the sheriff first proving that he represents another
creditor of the same debtor, by showing a legal precept in
his hands.t| He may also show, that the goods of the debtor
were absorbed by a prior execution in his hands; and in
such case, the plaintiff may rebut this evidence, by proving
that the prior execution was concocted in fraud, and that
the sheriff had previous notice thereof, and was required by
the plaintiff not to pay over the proceeds to the prior cred-
itor. He may also prove, that the debtor had previously
become bankrupt, for which purpose the petitioning creditor
is a competent witness to prove his own debt; the com-
mission being otherwise proved.® And if the assignees are
the real defendants, the plaintiff may give in evidence, the
petitioning creditor’s declarations in disparagement of his
claim, though he has not been called as a witness by the

defendant.’

1 Beynon v. Garratt, 1 C. & P. 154. Here, the officer levied a part, and
returned nulla bona as to the residue, and the plaintiff accepted the part
levied; which was held to be a waiver of all further claim on the sheriff, the
plaintiff having been previously advised: that it would have that effect. Sed
quere, and see Holmes v. Clifton, 10 Ad. & El, 673, where it was held, that
the mere receipt of the money levied will be no bar to the action.

2 Smallcombe v. Cross, 1 Lord Raym. 251; Kempland v. Macauley, 1
Peake, 65.

3 Bradley v. Windham, 1 Wils. 44.

4 Clark v. Foxcroft, 6 Greenl. 296; 7 Greenl. 348. And see Turvil v.
Tipper, Latch, 222, admitted in Tyler v. Duke of Leeds, 2 Stark. 218, and
in Harrod v. Benton, 8 B. & C. 217. See also Pierce v. Jackson, 6 Mass.
242; Supra, § 585.

5 Warmoll v. Young, 5 B. & C. 660.

6 Wright v. Lainson, 2M. & W. 739. And see Brydges v. Walford, 6
M. & §, 42.

7 Dowden v. Fowle, 4 Campb. 38.
PART IV.] SHERIFF. 648

§ 594, In answer to the defence of nulla bona, founded on
an alleged sale and assignment of his goods by the debtor,
the plaintiff may prove that the assignment or sale was
fraudulent! So, if the sheriff defends his return, on the
ground, that the debtor was an ambassador’s domestic ser-
vant, the plaintiff, in reply, may show that his appointment
was colorable and illegal Questions of this sort, though
extremely embarrassing to the sheriff, the Common Law
ordinarily obliges him to determine at his peril; but where
there are reasonable doubts as to the property of the debtor
in the goods in his possession, or which the sheriff is directed
to seize, or in regard to the lawfulness of an arrest, he may
refuse to act until he is indemnified by the creditor By
the Common Law, he might also apply to the Court to en-
large the time for making his return, until an indemnity was
given. Where he is entitled to an inquisition to ascertain
whether the property in goods seized on execution is in the
debtor or not, the finding is not conclusive for him; and in
England it has been held inadmissible in his favor, unless
upon an issue whether he has acted maliciously ;° but in the
United States, it has been admitted in evidence, and held
conclusive in his favor, in an action by the creditor for a false
return of nulla bona, where he acted in good faith ;° though

 

1 Dewey v. Bayntum, 6 East, 257.

2 Dellvalle v. Plomer, 3 Campb. 47.

3 Bond v. Ward, 7 Mass. 123; Marsh v. Gold, 2 Pick. 285; Perley v.
Foster, 9 Mass. 112, 114; Pierce v. Partridge, 3 Met..44; King v. Bridges,
7 Taunt. 294; Shaw v. Turnbridge, 2 W. Bl. 1064. :

4 Watson on Sheriffs, p. 195; Sewell on Sheriffs, p. 285. In England,
by the interpleader act, 1 & 2 W. 4, ch. 58, a summary mode is provided for
the speedy determination of such questions. In some of the United States,
there are statutory provisions for the like purpose, and for the sheriff’s pro-
tection; but in others, where the Court has no power to enlarge the time of
return, it being fixed by statute, it is conceived that the refusal of the party
to indemnify the sheriff, in a case of reasonable doubt in regard to the ser-
vice of process, would afford him a good defence to the action, or, at least
would reduce the damages to a nominal sum.

5 Latkow v. Eamer, 2 H. Bl. 437; Glossop v. Poole, 3M. & 8.175; Farr
v. Newman, 4 T. R. 633; Sewell on Sheriffs, p. 243; Watson on Sheriffs,
p- 198..

6 Bayley v. Bates, 8 Johns. 185.
644 LAW: OF EVIDENCE. [PART IV.

it is no justification, but is only admissible in mitigation of
damages in an action of trespass by the true owner of the
goods, for illegally taking them.)

§ 595. Where the action is for refusing to take buil, it is
sufficient for the plaintiff to prove the arrest, the offer of
sufficient bail, and the commitment. And it is not for the
sheriff to say, that the plaintiff did not tender a bail-bond ;
for it was his own duty to prepare the bond, though the party
arrested is liable to pay him for so doing.”

§ 596. (6). The sheriff is also liable to an action for extor- '
tion; which consists in the unlawful taking, by color of his
office, either in money or other valuable thing, of what is
not due, or before it is due, or of more than is due. If the
money levied is not: sufficient to satisfy the plaintiff’s claim,
the retaining of any part, which ought to have been paid
over to the plaintiff, is an indirect receiving and taking, from
him! In this action, the principal points to be proved by
the plaintiff are, (1.) the process; and if it be an execution,
he must prove the judgment also, on which it issued, if it is
stated, though unnecessarily, in the declaration ;* (2.) the
connection between the officer, and the sheriff who is sued;
and (3.) the act of extortion. The evidence to prove the
two former of these points has already been considered.
The last is made out by any competent evidence of the
amount paid, beyond the sum allowed by law.

§ 597. (7.) Where the action against the sheriff is for
taking the goods of the plaintiff, he being a stranger to the
process, the controversy is usually upon the validity of the
plaintiff’s title as derived from the judgment debtor, which is
impeached on the ground, that the sale or assignment by the

 

i Townsend v. Phillips, 10 Johns. 98.
2 Milne v. Wood, 5 C. & P. 587.
3 Buckle v. Bewes, 8 B. & C. 688.

4 Savage v. Smith, 2 W. Bl. 1101, explained in 5 T. R. 498.
5 See supra, §§ 582, 584,
PART Iv.] SHERIFF. 645

debtor to the plaintiff was fraudulent and void as against
creditors. Here, if the plaintiff has never had possession of
the goods, so that the sale, whatever it was, is incomplete, |
for want of delivery, the proof of this fact alone will suffice
to defeat the action. But if the transaction was completed
in all the forms of law, and is assailable only on the ground
of fraud, the sheriff must first entitle himself to impeach it,
by showing, that he represents a prior creditor of the debtor,
and this is done by any evidence, which would establish this
fact in an action by the creditor against the debtor himself,
with the additional proof of the process in the sheriff’s hands,
in favor of that creditor, under which the goods were seized.t
This evidence has already been considered, in treating of
actions for not executing process, and for an escape? It is
only necessary here to add, that, when the sheriff justifies
under final process, he need not show its return unless some
ulterior proceeding is requisite to complete the justification ;
for, being final, and executed, the creditor has had the effect
of his judgment; but in the case of mesne process, as the
object of the writ is to enforce the appearance of the party,
and to lay the foundation of further proceedings, the officer
will not be permitted,to justify under it, after it is returnable,
unless he shows that he has fully obeyed it, in making a re-
turn.’ The proofs in regard to fraud are considered as foreign
to the design of this work.4 ,

§ 598. In regard to the competency of witnesses for and

 

1 Truitt v. Revill, 4 Harringt. 71; Brown v. Bissett, 1 N. Jer. 46.

2 Supra, §§ 584, 589. And see Martyn x. Podger, 5 Burr, 2631, 2633 ;
Lake ». Billers, 1 Ld. Raym. 733 ; Ackworth v. Kempe, 1 Doug. 40; Damon
v. Bryant, 2 Pick. 411; Glasier v. Eve, 1 Bing. 209. The recital of the
writ, in the sheriff’s warrant to his officer, is some evidence of the precept
in his hands. Bessey v. Windham, 6 Ad. & El. 166, N. 8S.

3 Rowland v. Veale, Cowp. 18; Cheasley v. Barnes, 10 East, 93; Free-
man v. Bluett, 1 Salk. 410; 1 Ld. Raym. 633, 684; Clark v. Foxcroft, 6
Greenl. 296; Russ-v. Butterfield, 6 Cush. 243; Roberts v. Wentworth, 5 Ib.
192. See Wilder v. Holden, 24 Pick. 8, 12.]

4 See Roberts on Fraudulent Conveyances, p- 542-590, 2 Kent, Comm.
582-536, where this subject is fully treated. Where the goods were taken
646 LAW OF EVIDENCE. [parr Iv.

against the sheriff, in addition to what has already been
stated respecting his deputies and the execution creditor,! it
may here further be observed, that, where the issue is upon
a fraudulent conveyance by the judgment debtor, his decla-
rations, made at the time of the conveyance, are admissible
as part of the res geste; and that, where the question is
wholly between his own vendee and the attaching creditor,
his ‘interest being balanced, he is a competent witness for
either party ;? but where a question remains between him
and his vendee, as to the title, he is not a competent witness
for the sheriff, to impeach it? A surety is a competent
witness for the sheriff, in an action for taking insufficient
sureties. The owner of goods, who has forcibly rescued

 

on execution, and were found in the possession of the judgment debtor, and
are replevied by a person claiming title as owner of them, the burden of
proof is on the plaintiff in replevin, to show his own title ; but if they were
taken out of the plaintiff’s possession, the burden of proof is on the officer,
to show that they were the property of the judgment debtor. Merritt v.
Lyon, 3 Barb. S. C. R. 110. [An officer while serving a process, regular
on its face, and issued by a magistrate or Court having jurisdiction over the
subject-matter, is justified thereby for all acts ddhe by him in its lawful exe-
cution. Clarke v. May, 2 Gray, 413; Whipple v. Kent, Ib.; Donahoe v.
Shed, 8 Met. 326. If the want of jurisdiction of the magistrate appears on
the face of the process, the process does not protect the officer, but he is a
trespasser. Fisher v. McGirr, 1 Gray, 45-46. See also Kennedy v. Dunck-
lee, Ib. 71. See also Twitchell v. Shaw, 10 Cush. 46. An officer com-
mitted on execution, at the request of the judgment creditor, a debtor, to
the jail farthest from his residence, although the debtor requested the jailer
to commit him to a nearer jail in the same county, and it was held that he
was not therefor liable to an action by the debtor. Woodward v. Hopkins,
2 Gray, 210, 212. A person who is arrested on a void execution, and gives
bond for the prison limits, cannot recover of the officer, or of the execution
‘creditor, damages for remaining within the prison limits according to the
terms of his bond. Allen v. Shed, 10 Cush. 375.]

1 Supra, §§ 5838, 593. ;

2 Ante, Vol. 1, §§ 397, 398.

3 Bland v. Ansley, 2 New Rep. 331. In this case, the debtor had sold a
house to the plaintiff, but whether he sold the goods in it also, was a matter
in dispute between them; and he was therefore held incompetent to testify
in favor of his own claim.

41 Saund. 195 f, note by Williams.
PART IV. ] SHERIFF. 647

them out of the sheriff’s hands, is also a competent witness
for the sheriff, in an action for falsely returning nulla bona
on an exécution; for such return precludes the sheriff from
maintaining an action against him for the rescue.) _

§ 599. The damages to be recovered in an action against
the sheriff will, in general, be commensurate with the extent
of the injury. But in debt, for an escape on execution, the
measure of damages is the amount of the judgment, without
abatement on account of the poverty of the debtor, or any
other circumstances.2. And where the sheriff has falsely
returned bail, when he took none, and an action is brought
against him for refusing to deliver over the bail-bond to the
creditor, he is liable for the whole amount of the judgment,
and cannot show, in mitigation of damages, that the debtor
was unable to pay any part of the debt ; for this would be no
defence for the bail themselves, and the sheriff, by his false
return, has placed himself in their situation. But in other
cases, though the judgment recovered by the plaintiff against
the debtor is primé facie evidence of the extent of the injury,
which the plaintiff has sustained by the officer’s breach of
duty i in regard to the service and return of the process, yet
it is competent for the officer to prove, in mitigation of the
injury, any facts showing that the plaintiff has suffered
nothing or but little, by his unintentional default or breach
of duty The Jury may give more than the amount of.

 

1 Thomas v. Pearse, 5 Price, 547.

2 Hawkins v. Plomer, 2 W. Bl. 1048; Alsept v. Eyles, 2 H. Bl. 108, 113;
Supra, § 589; Bernard v. The Commonwealth, 4 Litt. R. 150; Johnson v.
Lewis, 1 Dana, 183; Shewell v. Fell, 3 Yeates,17; 4 Yeates,47. Interest,
from the date of the writ, may also be computed. Whitehead v. Varnum,
14 Pick. 523. In some of the United States, the rule of the Common Law,
that the whole sum must be given, has been altered by statutes abolishing
the action of debt for an escape; and the rule is never applied, in any State,
to an action of debt upon the sheriff’s bond.

3 Simmons v. Bradford, 15 Mass. 82.

4 Evans v. Manero, 7 M. & W. 463, 473, per Lord Abinger, C. B.; Wil-
liams v. Mostyn, 4 M. & W. 145. And see Weld v. Bartlett, 10 Mass. 470;
Gerrish v. Edson, 1 New Hamp. 82; Burrell v. Lithgow, 2 Mass. 526;
Smith v. Hart, 2 Bay, 395.
648 LAW OF EVIDENCE. [PART IV.

the judgment, if they believe that the wrong was wilful
on the part of the officer, by adding to it the incidental
expenses of the plaintiff, and the costs not taxable. On the
other hand, if it should be apparent that the wrong done
by the officer was not the result of a design to injure, and
that by it the plaintiff is not placed in a worse situation
than he would have been in, had the officer done his duty,
the Jury will be at liberty, and it will be their duty, to see
that a humane or mistaken officer is not made to pay greater
damages than the party has actually suffered by his wrong.!
In cases, therefore, of the latter description, the sheriff has
been permitted to show, in mitigation of damages, that the
debtor was poor, and unable to pay the debt;? or that he
might still be arrested as easily as before, the sheriff having.
omitted to arrest him while sick and afflicted ;* or that, for
any other reason, the plaintiff has not been damnified4 If
the action is for an escape on mesne process, and the sheriff
afterwards bad the debtor in custody, the plaintiff cannot
maintain the action, without proof of actual damages.> In
the action for taking insufficient sureties, the plaintiff can
recover no more -against the sheriff, than he could have re-
covered against the sureties.

>

 

1 Weld v. Bartlett, 10 Mass. 470, 473, per Parker, J.

2 Brooks v. Hoyt, 6 Pick. 468; [Chase v. Keyes, 2 Gray, 214; Ledyard
v. Jones, 3 Selden, (N. Y.) 550.]

3 Weld v. Bartlett, 10 Mass. 470.

4 Baker v. Green, 2 Bing. 317; Potter v. Lansing, 1 Johns. 215; Russell
v. Turner, 7 Johns. 189; Young v. Hosmer, 11 Mass. 89; Nye v. Smith, Id.
188; Eaton v. Ogier, 2 Greenl. 46.

5 Planck v. Anderson, 5 T. R. 37, confirmed in Williams v. Mostyn, 4 M.
& W. 145, 154, where Baker v. Green, 2 Bing. 317, is, as to this point,
overruled. See also Bales v. Wingfield, 4 Ad. & El. 580, N. S.

6 Evans v. Brander, 2 H. Bl. 547, confirmed in Baker v. Garratt, 3 Bing.
56. [In an action against an officer for a false return on an execution, the
damages are the amount ordered to be collected thereon, where there, is
property enough to levy iton. He will not be permitted to say that a less
sum was due on the judgment, than that directed to be collected. Bacon
v. Cropsey, 3 Selden, (N. Y¥.) 195.]
PART Iv.| TENDER. 649

TENDER.

§ 600. Tue plea of tender admits the existence and va-
lidity of the debt or duty, insisting only on the fact, that
there has been an offer to pay or perform it. And though the
contract be one which the Statute of Frauds requires to be
in writing, yet the plea of tender dispenses with the neces-
sity of proving it. The general proposition maintained in
the plea is, that the defendant has done all that was in the
power of any debtor alone to do, towards the fulfilment of
his obligation ; leaving nothing to be done towards its com-
pletion, but the act of acceptance on the part of the creditor.
If the tender was of money, it is pleaded with an averment,
that the defendant was always and still is ready to pay it,
and the money is produced in Court. But if the obligation
was for the delivery of specific chattels, other than money,
a plea of the tender alone, without an averment of subse-
quent readiness to perform, is sufficient; the rule requiring
only the averment of an offer and readiness to do that, which
isia discharge of the obligation.?

§ 601. To support the issue of a tender of money, it is
necessary for the defendant to show, that the precise sum,?
or more, was actually produced, in current money, such as is
made a legal tender by statute, and actually offered to the
plaintiff* But if a tender is made in bank-notes it is good,

 

1 Middleton v. Brewer, 1 Peake, 15. [So it does in tort, if there be but
one cause of action set out in the declaration. Bacon v. Charlton, 7 Cush.
581, 583.]

22 Roll. Abr. 523; Tout temps prist, A. pl. 1, 8, 5; Carley v. Vance,
17 Mass. 392; [Knox v. Light, 12 Ill. 86.]

3 A tender of part of an entire demand is inoperative. Dixon v. Clark,
5 M.G. & S. 365; 5 Dowl. & L. 155; [Smith v. Anders, 21 Ala. 782.]

4 The current money of the United States, which is made a legal tender
by statute, consists of all the gold and silver coins of the United States ;
together with Spanish milled dollars and their parts, at the rate of one hun-

VOL. Il. ; 55
a
650 LAW OF EVIDENCE. [PART Iv.

if the want of its being in current coins is waived; and if
the creditor places his refusal to receive the money on some
other ground, or even if he makes no objection to the tender

 

dred cents for a dollar, weighing not less than seventeen pennyweights and
seven grains; the dollars of Mexico, Peru, Chili, and Central America, of
not less weight than four hundred and fifteen grains each, at the same rate ;
those re-stamped in Brazil, of the like weight, of not less fineness than ten
ounces and fifteen pennyweights of pure silver to the pound troy of twelve
ounces of standard silver ; and the five frane pieces of France, of not less
fineness than ten ounces and sixteen pennyweights of pure silver to the like
pound troy, and weighing not less than three hundred and eighty-four grains
each, at ninety-three cents each. Stat. 1837, ch. 3, §§ 9,10; Stat. 1834,
ch. 71, § 1; Stat. 1806, ch. 22,§ 2. Foreign gold coins ceased to be a legal
tender, after November 1, 1819, by Stat. 1819, ch. 507, § 1. Copper
cents and half-cents are established as part of the currency, and by impli-
cation made a legal tender, by Stat. 1792, ch. 39, § 2. [In 1851 the coin-
age of “ three cent” pieces was authorized, and that coin was made “a legal
tender in payment of debts for all sums of thirty cents and under. Acts,
1850-1, ch. 20,§ 11. The Act of 1856-7, ch. 56, § 3, repeals “ all ‘former
acts authorizing the currency of foreign gold and silver coins, and declar-
ing the same a legal tender in payment for debts” § 4, provides that “the
coinage of the half-cent shall cease.”] A tender of the creditor’s own prom-
issory note, due to the debtor, is not good. Cary v. Bancroft, 14 Pick. 315;
Hallowell and Augusta Bank v. Howard, 13 Mass. 235. [A tender of a
gross sum upon several demands without designing the amount tendered
upon each is sufficient. Thetford ». Hubbard, 22 Vt. 440.

Where a person designedly absents himself from home for the fraudulent
purpose of avoiding a tender, he is estopped from objecting that no tender
was made. Southworth v. Smith, 7 Cush. 393; Gilmore v. Holt, 4 Pick.
258. And where the person whose duty it is to make the tender, uses due
diligence, but is unable to find the person to whom the tender should be
made, or any person authorized to act in his behalf, he accomplishes all the
law requires. Southworth v. Smith, ubi supra. And where the obligee in a
bond was to “tender a conveyance,” within a specified time, and within that
time went to the house of the obligor with such conveyance duly executed,
but did not tender the same, because the wife of the obligor informed him
that the obligor was out of the State, and he in fact was out of the State, it
was held that such absence excused the obligee from further performance of
his part ; that he was not bound to inquire if the obligor had left any agent
to act for him in his absence; it being the duty of the obligor to appoint
an agent to act for him in his absence, and to notify the obligee thereof.
Tasker v. Bartlett, 5 Cush. 359-363. See also Stone v. Sprague, 20 Barb.
509; Holmes v. Holmes, 12 lb. 137; Hewry v. Raiman, 25 Penn. State R.
354.]
PART IV.] TENDER. 651

on the express ground that it is in bank-notes, it is held a
waiver of this objection.) So, if the tender is made in a
bank-check, which is refused because it is not drawn for so
much as the creditor demands, it is a good tender?

§ 602. It must also appear, that the money, or other thing
tendered was actually produced to the creditor. It must be
in sight, and capable of immediate delivery, to show that, if
the creditor were willing to accept it, it was ready to be
paid? If it be in bags, held under the party’s arm, and not
laid on the table or otherwise actually offered to the creditor,
it is not sufficient. And if it be in the debtor’s hand, and
the sum is declared, and it is offered by way of tender, it is
good, though it be in bank-notes, twisted in a roll, and not
displayed to the creditor But if the sum is not declared,§
or the party says he will pay so much, putting his hand in
his pocket to take it, but before he can produce it the cred:
‘itor leaves the room ;’ it is not a good tender. Great impor-
tance is attached to the production of the money, as the
sight of it might tempt the creditor to yield, and accept it.8

§ 603. The production of the money is dispensed with, if
the party is ready and willing to pay the sum, and is about
to produce it, but is prevented by the creditor’s declaring that

 

1 Wright v. Reed, 3 T. R. 554; Snow v. Perry, 9 Pick. 542; Brown v.
Saul, 4 Esp. 267; Polglase v. Oliver, 2 C. & J. 15; Warren v. Mains, 7
Johns. 476; Towson v. Havre de Grace Bank, 6 H. & J. 53; Coxe v. State
Bank, 3 Halst. 72; Bank of the United States v. Bank’of Georgia, 10
Wheat. 333 ; [Cummings Putnam, 19 N. H. 569; Curtiss v. Greenbanks,
24 Vt. 536. 1

2 Jones v. Arthur, 4 Jur. 859; 8 Dowl. P. C. 442, S. C.

3 Thomas v. Evans, 10 East, 101; Glasscott v. Day, 5 Esp. 48; Dickinson
v. Shee, 4 Esp. 68; Bakeham v. Pooler, 15 Wend. 637; Kraus v. Arnold,
7 Moore, 59; Breed v. Hurd, 6 Pick. 356; Newton v. Galbraith, 5 Johns.
119.

4 Bull. N. P. 155; Wade's case, 5 Co. 115.

5 Alexander v. Brown, 1 C. & P. 288. e

6 Ibid.

7 Leatherdale v. Sweepstone, 3 C. & P. 342.

* Finch v. Brook, 1 Bing. (N. C.) 253, per Vaughan, J.
652 LAW OF EVIDENCE. [PaRT IV.

he will not receive it! But his bare refusal to receive the
sum proposed, and demanding more, is not alone sufficient
to excuse an actual tender? The money or other things
must be actually at hand and ready to be produced imme-
diately, if it should be accepted; as, for example, if it be in
the next room, or up-stairs; for if it be a mile off, or can be
borrowed and produced in five minutes, or being a bank-
check, it be not yet actually drawn, it is not sufficient The
question whether the production of the money has been dis-
pensed with, is a question for the Jury; and if they find the
facts specially, but do not find the fact of dispensation, the
Court will not infer it.

§ 604, If the debtor tendered a greater sum than was due,
it must appear that it was so made, as that the creditor
might take therefrom the sum that was actually due to him;
as, if twenty dollars were tendered, when only fifteen were
‘due; or else it must appear that the debtor remitted the ex-
cess, 5 And therefore it has been held, that, where the tender
is to be made in bank-notes, a tender of a larger note than
the sum due, is bad. But if the creditor does not object to
it on that account, but only demands a larger sum, the tender
will be good, though the debtor asked for change.’

 

1 Black v. Smith, 1 Peake, 88; Read v. Goldring, 2 M. & S. 86; Barker
v. Packenhorn, 2 Wash. C. C. R. 142; Calhoun v. Vechio, 38 Wash. 165;
Blight v. Ashley, 1 Pet. C. C. R. 15; Slingerland v. Morse, 8 Johns. 474;
Bellinger ». Kitts, 6 Barb. 8. C. R. 278; [Hazard v. Loring, 10 Cush. 267,
269; Parker v. "Parking, 8 Ib. 819; [Mewarcle v. Archer, 3 Bosworth, 376.]

2 Dantiars v. Jackson, 6 Wend. 22.

3 Harding v. Davies, 2 C. & P. 77; Dunham v. Jackson, 6 Wend. 22, 33,
34; Breed v. Hurd, 6 Pick. 856. And see Searight v. Calbraith, 4 Dall. 325,
$27; Fuller v. Little, 7 N. Hamp. 535; Brown v. Gilmore, 8 Greenl. 107.

4 Finch v. Brook, 1 Bing. N. C. 253.

5 Wade’s case, 5 Co. 115; Douglas v. Patrick, 3 T. R. 688; Hubbard v.
Chenango Bank, 8 Cowen, 88,101; Dean v. James, 4 B. & Ad. 546; Bevan
v. Rees, 7 Dowl. P. C. 510; Thorpe vu. Burgess 4 Jur. 799; 8 Davi, P. C.
603. .

6 Betterbee v. Davis, 3 Campb. 70.

7 Black v. Smith, 1 Peake, 88; Saunders v. Graham, Gow, 121; Cadman
v. Lubbock, 5 D. & R. 289.
PART IV.] TENDER. 653

x
- § 605. It must also appear, that the tender was absolute ;

for if it be coupled with a condition, as, for example, if a
larger sum than is due be offered, and the creditor be re-
quired to return the change ;! or if the sum be offered in full
of all demands ;? or if it be on condition, that the creditor
will give a receipt or a release ;° or if it be offered by way
of boon, with a denial that any debt is due ;* or if any other
terms be added, which the acceptance of the money would
cause the other party to admit, the tender is not good. But
if the creditor places his refusal to receive the money on some
other ground than because it is coupled with a condition,
this is evidence of a waiver of that objection, to be consid-
ered by the Jury;° whose province it is to decide, whether
a tender was made conditionally, or not.’ If there be several
debts, due from divers persons to the same creditor, and a

 

1 Robinson v. Cook, 6 Taunt. 336; Betterbee v. Davis, 3 Campb. 70.

2 Sutton v. Hawkins, 8 C. &. P. 259; Mitchell v. King, 6 C. & P. 237;
Cheminant v. Thornton, 2 C. & P. 50; Strong v. Harvey, 3 Bing. 304; Evans
v. Judkins, 4 Campb. 156; Wood v. Hitchcock, 20 Wend. 47; Robinson v.
Ferreday, 8 C. & P. 752.

3 Ryder v. Ld. Townsend, 7 D. & R. 119, per Bayley, J.; Laing v. Mea-
der, 1 C. & P. 257; Griffith v. Hodges, Id. 419; Thayer v. Brackett, 12
Mass. 450; Glasscott v. Day, 5 Esp. 48; Loring v. Cook, 3 Pick. 48; Hep-
burn v. Auld, 1 Cranch, 321; Higham v. Baddely, Gow, 213. But see
Richardson v. Jackson, 8 M. & W. 298; Finch v. Miller, 5 M. G. & 8. 428;
[Richardson v. Boston Chem. Lab. 9 Met. 42.]

’ 4 Simmons v. Wilmott, 3 Esp. 94, per Ld. Eldon.

5 Hastings v. Thorley, 8 C. & P.573, per Ld. Abinger; Huxham v. Smith, |
2 Campb. 21; Jennings v. Major, 8 C. & P.61; Brown v. Gilmore, 8 Greenl.
187. But if the condition be that the creditor shall do an act, which he is
bound by law to do upon payment of the money, it is a good tender. Saun-
ders v. Frost, 5 Pick. 259,270. A tender made “ under protest,” is absolute,
and a good tender. Manning v. Lunn, 2 C. & K.13. So, if a tender is
made as the whole that is due, it is sufficient. Henwood v. Oliver, 1 Ad. &
El. 409, N. S.; Ball v. Parker, 2 Dowl. 345, N. S.; Bowen v. Owen, 11 Jur.
972; 11 Ad. & El. 130, N. 8.

6 Supra, §§ 601, 604; Richardson v. Jackson, 8 M. & W. 298; 9 Dowl. P.
C. 715, 8. C.; Eckstein v. Reynolds, 7 Ad. & El. 80; Cole v. Blake, 1 Peake,
179.

7 Marsden v. Goode, 2 C. & K. 183; Eckstein v. Reynolds, 7 Ad. & El.
80.

55 *
654 LAW OF EVIDENCE. [PART IV.

gross sum be tendered for all the debts, this is not a good
tender for any one of them.' But if there be several cred-
itors, who are all present, and the debtor tenders a gross sum
to thern all, sufficient to satisfy all their demands, which they
all refuse, insisting that more is due, it is a good tender to
each one

§ 606. The tender must be made to the creditor himself, or
to his agent, clerk, attorney, or servant, who has authority
to receive the money. A tender to the attorney at law, to
whom*the demand has been intrusted for collection, or to
his clerk or other person having charge of his office and
business in his absence, is good, unless the attorney dis-
claims his authority at the time. And generally, if a tender
be made to a person whom the creditor permits to occupy
his place of business, in the apparent character of his clerk
or agent, it is a good tender to the creditor.6 So, if it is
sent by the debtor’s house servant, who delivers it to a ser-
vant in the creditor’s house, by whom it is taken in, and an
answer returned as from the master, this is admissible evi-
dence to the Jury in proof of a tender.

§ 607. As to the time of tender, it must, in all cases, by the

 

1 Strong v. Harvey, 3 Bing. 304. [See Thetford ». Hubbard, 22 Vt. 440.]

2 Black v. Smith, 1 Peake, 88.

3 Goodland v. Blewith, 1 Campb. 477. If the clerk or servant is directed
not to receive the money, because his master has left the demand with an
‘| attorney for collection, still the tender to him is a good tender to the princi-
pal. Moffat v. Parsons, 5 Taunt. 307.

4 Wilmot v. Smith, 3 C. & P. 453; Crozer ». Pilling, 4 B. & C. 29; Bing-
ham v. Allport, 1 Nev. & Man. 898. It is not necessary to tender also the
amount of the attorney’s charge for a letter to the debtor, demanding pay-
ment. Kirton v. Braithwaite, 1 M.& W. 310. [Notwithstanding the dis-
claimer, if he be in fact the attorney of the creditor at the time, it is a good
tender. MclIniffe v. Wheelock, 1 Gray, 600, 604. A tender of the amount
due, and the cost of the writ, if a writ has been made, is sufficient, although
the writ has been sent away for service, if there is a reasonable time to recall
it before it is served. Call v. Lothrop, 39 Maine, 434.]

5 Barrett v. Deere, 1 M. & M. 200.

6 Anon. 1 Esp. 349.
PART Iv.] TENDER. 655

Common Law, be made at the time the money became due;
a tender made after the party has broken his contract*being
too late, and therefore not pleadable in bar of the action ;!
though it stops the interest, and, by leave of Court, the
money may be brought in upon the common rule. But
where the defendant is not in moré, as, for example, if no
day of payment was agreed upon, and the money has not
been demanded, or if amends are to be offered for an invol-
untary trespass, proof of a tender, made at any time before
the suit is commenced, is sufficient to support the plea of
tender.? In the case of damage-feasant, a tender is Sood, if
made at any time before the beasts are impounded, though
it be after they were distrained®

§ 608. The plaintiff may avoid the plea of a tender of
money, by replying a subsequent demand and refusil; the
burden of proving which, if traversed, lies upon him. And
he must show, that the demand was made of the precise sum
mentioned in the replication, a variance herein being fatal.
He must also prove, that the demand was made either by
himself in person, or by some one authorized to receive the
money and give a discharge for it6 A demand made by let-
ter, to which an answer, promising payment was returned,
was in one case held sufficient;® but this has since been

 

1 Hume v. Peploe, 8 East, 168,170; City Bank v. Cutter, 3 Pick. 414,
418; Suffolk Bank v. Worcester Bank, 5 Pick. 108; Dewey v. Humphrey,
Id. i187; Giles v. Harris, 1 Ld. Raym. 254; Savery v. Goe, 3 Wash. 140;
Gould v. Banks, 8 Wend. 562. Aliter in Connecticut, Tracy v. Strong, 2
Conn. 659. In several of the United States, provision has been made by
statute for a tender of the debt and costs, even after action brought. Rev.
Stat. Massachusetts, ch. 100, §§ 14,15; Rev. Stat. Maine, p.767. And see
Hay v. Ousterout, 3 Ham. Ohio, 585.

2 Watts v. Baker, Cro. Car. 264.

3 Pilkington v. Hastings, Cro. El. 813; The Six Carpenters’ case, 8 Co.
147.

4 Rivers v. Griffiths, 5 B. & Ald. 630; Spybey v. Hide, 1 Campb. 181;
Coore v. Callaway, 1 Esp. 115; [Thetford ». Hubbard, 22 Vt. 440.]

5 Coles v. Bell, 1 Campb. 478, n.; Coore v. Callaway, 1 Esp. 115; Supra,
§ 606.

6 Hayward v. Hague, 4 Esp. 93.
656 LAW OF EVIDENCE. [PART Iv.

doubted, on the ground, that the demand ought to be so
made as to afford the debtor an opportunity of immediate
compliance with it If there be two joint debtors, proof of
a demand made upon one of them will support the allega-
tion of a demand upon both?

§ 609. Specific articles are to be delivered at some particu-
lar place, and not, like money, to the person of the creditor
wherever found. If no place is expressly mentioned in the
contract, the place is to be ascertained by the intent of the
parties; to be collected from the nature of the case, and its
circumstances? If the contract is for the delivery of goods,
from the vendor to the vendee on demand, the vendor being
the manufacturer of the goods, or a dealer in them, and no
place being expressly named, the manufactory or store of the
vendor will be understood to be the place intended, and a
tender there will be good. And if the specific articles are at
another place at the time of sale, the place where they are
at that time is generally to be taken as the place of delivery.*
But where the contract is for the payment of a debt in spe-
cific articles, which are portable, such as cattle, and the like,
at a time certain, but without any designation of the place,
in the absence of other circumstances from which the intent
of the parties can be collected, the creditor’s place of abode
at the date of the obligation will be understood as the place
of payment5 And on the same principle of intention, a note
given by a farmer, payable in “farm produce,” without any
designation of time or place, is payable at the debtor’s farm.
Indeed the same rule governs, in the case of a similar obliga-
tion to pay or deliver any other portable specific articles on
demand; for the obligation being to be performed on de-

1 Edwards v. Yeates, Ry. & M. 360.

2 Peirse v. Bowles, 1 Stark. 323.

32 Kent, Comm. 505, 506; Poth. Obl. No. 512; Goodwin v. Holbrook,
4 Wend. 377; Howard v. Miner, 2 Applet. 325.

4 Thid.

5 Ibid.; Chipman on ae pp- 24, 25, 26; Goodwin v. Holbrook, 4
Wend. 377, 380.,
PART IV.] TENDER. 657

mand, this implies that the creditor must go to the debtor to
make the demand, before the latter-can be in default! Bui
wherever specific articles are tendered, if they are part of a
larger quantity, they should be so designated and set apart,
as that the creditor may see and know what is offered to be
his own?

§ 610. If the goods are cumbrous, and the place of deliv-
ery is not designated, nor to'be inferred from collateral cir-
cumstances, the presumed intention is, that they were to be
delivered at any place which the creditor might reasonably
appoint; and accordingly, it is the duty of the debtor to call
upon the creditor, if he is within the State, and request him
to appoint a place for the delivery of the goods. If the cred-
itor refuses, or which is the same in effect, names an unrea-
sonable place, or avoids, in order to prevent the notice, the
right of election is given to the debtor; whose duty it is to
deliver the articles at a reasonable and convenient place,
giving previous notice thereof to the creditor if practicable.
And if the creditor refuses to accept the goods when properly
tendered, or is absent at the time, the property, nevertheless,
passes to him, and the debtor is forever absolved from the
obligation.?

§ 611. By the Roman Law, where the house or shop of

 

12 Kent, Comm. 508; Chipman on Contracts, pp. 28, 29, 30, 49 ; Lobdell
v. Hopkins, 5 Cowen, 516; Goodwin v. Holbrook, 4 Wend. 380.

2 Veazey v. Harmony, 7 "Greehl. 91; [McJilton v. Smizer, 18 Mis. (3 Ben-
nett,) 111.]

32 Kent, Comm. 507, 508, 509; Co. Lit. 210 Bb; Aldrich ». Albee, 1
Greenl. 120; Howard ». Miner, 2 ‘Applet: R. 325. Chipman on Contracts,
p- 51-56 ; Lamb v. Lathrop, 13 Wend. 95. Whether if the creditor is out
of the State, no place of delivery having been agreed upon, this circum-
stance gives to the debtor the right of appointing the place, quere ; and see
Bixby v. Whitney, 5 Greenl. 192; in which, however, the reporter’s mar-
ginal note seems to state the doctrine a little broader than the decision re-
quires, it not being necessary for the plaintiff, in that case, to aver any
readiness to receive the goods, at any place, as the contract was for the pay-
ment of a sum of money, in specific articles, on or before a day certain.
658 LAW OF EVIDENCE. [PART Iv.

the creditor was designated or ascertained as the intended
place of payment, and:the creditor afterwards and before
payment changed his domicile or place of business to another
town or place, less convenient to the debtor, the creditor was
permitted to require payment at his new domicile or place,
making compensation to.the debtor for the increased expense
and trouble thereby caused to him. But by the law of
France, the debtor may in such case require the creditor to
nominate another place, equally convenient to the debtor;
and on his neglecting so to do, he may himself appoint
one; according to the rule, that nemo, alterius facto, pregra-
vari debet. Whether, in the case of articles not portable,
but cumbrous, such removal of. domicile may, at Common
Law, be considered as a waiver of the place, at the elec-

tion of the debtor, does not appear to have been expressly
decided.

§ 611 a. In regard to the manner of tender of goods, it is
well settled that a tender of goods does not mean an offer of
packages containing them; but an offer of those packages,
under such circumstances that the person, who is to pay for
the goods, shall have an opportunity afforded him, before he
is called upon to part with his money, of seeing that those,
presented for his acceptance, are in reality those for which
he has bargained? ,

 

1 Poth. on Oblig. Nos. 238, 239, 513.

2 See Howard v. Miner, 2 Applet. R. 325, 330.

3 Isherwood v. Whitmore, 11 M. & W. 347, 350, And see 10 M. & W.
757, 8. C.
PART IV.] TRESPASS. 659

TRESPASS.

§ 612. Tux evidence in actions of trespass against the per-
son having already been considered, under the head of As-
sault and Battery, it remains in this place to treat of the
evidence applicable to actions of trespass upon property,
whether real or personal.

§ 613. Though the right of property may and often does
come in controversy in this action, yet the gist of the action
is the injury done to the plaintiff’s possession. The sub-
stance of the declaration, therefore, is, that the defendant has
forcibly and wrongfully injured the property, in the possession
of the plaintiff; and under the general issue the plaintiff must
prove, (1.) that the property was in his possession at the time
of the injury, and this rightfully, as against the defendant;
and (2.) that the injury was committed by the defendant,
with force.

§ 614. (1.) The possession of the plaintiff may be actual
or constructive. And it is constructive, when the property
is either in the actual custody and occupation of no one, but
rightfully belongs to the plaintiff; or when it is in the care
and custody of his servant, agent, or overseer, or in the hands
of a bailee for custody, carriage, or other care or service, as
depositary, mandatary, carrier, borrower, or the like, where
the bailee or actual possessor has no vested interest or title to

 

1 [To constitute a trespass there must be a disturbance of the plaintiff’s
possession ; which in the case of personal property may be done by an ac-
tual taking, a physical seizing, or taking hold of the goods, removing them
from their owner, or by exercising a control or authority over them incon-
sistent with their owner’s possession. Holmes v. Doane, 3 Gray, 329, 330;
Coffin v. Field, 7 Cush. 355 ; Codman v. Freeman, 3 Ib. 306.]'
660 LAW OF EVIDENCE. [PART Iv.

the beneficial use and enjoyment of the property, but on the
contrary, the owner may take it into his own hands, at his
pleasure. Where this is the case, the general owner may sue
in trespass, as for an injury to his own actual possession, and
this proof will maintain the averment.1. The general prop-
erty draws to it the possession, where there is no intervening
adverse right of enjoyment. And this action may also be
maintained by the actual possessor, upon proof of his posses-
sion de facto, and an authority coupled with an interest in
the thing, as carrier, factor, pawnee, or sheriff? A tenant
at will, and one entitled to the mere profits of the soil, or
vestura terre, with the right of culture, may also sue in
trespass, for an injury to the emblements, to which he is
entitled.®

 

11 Chitty on Plead. 188, 195, (7th edit.) ; Lotan v. Cross, 2 Campb. 464;
Bertie v. Beaumont, 16 East, 33; Aikin v. Buck, 1 Wend. 466; Putnam
v. Wyley, 8 Johns. 432; Thorp v. Burling, 11 Johns. 285; Hubbell »v.
Rochester, 8 Cowen, 115; Root v. Chandler, 10 Wend. 110; Oser v. Storms,
9 Cowen, 687; Wickham v. Freeman, 12 Johns. 183; Smith v. Milles, 4
T. R. 480; Corfield v. Coryell, 4 Wash. 387; Hingham v. Sprague, 15 Pick.
102; Starr v. Jackson, 11 Mass. 519; Walcott v. Pomeroy, 2 Pick. 121;
[Warren v. Cochran, 10 Foster, (N. H.) 379; Heath v. West, 8 Ib. 101;
Schloss v. Cooper, 1 Williams, (Vt.) 623; Foster v. Pettibone, 20 Barb.
850; Bailey v. Massey, 2 Swan, (Tenn.) 167; Browning v. Skillman, 4
Zabr. 351; Thomas v. Snyder, 23 Penn. State R. 515. But prior construc-
tive possession of land must yield to subsequent adverse possession. Davis
v. White, 1 Williams, (Vt.) 751.]

2 Wilbraham v. Snow, 2 Saund. 47; Id. 47 a, b, note (1), by Williams ;
Colwill v. Reeves, 2 Campb. 575. [See also Leisherness v. Berry, 38 Maine,
80.]

3 Co. Litt. 4 6; Wilson v. Mackreth, 8 Burr. 1824; Crosby v. Wads-
worth, 6 Hast, 602; Stammers v. Dixon, 7 Kast, 200; Stewart v. Doughty,
9 Johns. 108; Stultz v. Dickey, 5 Binn. 285; Austin v. Sawyer, 9 Cowen,
39; [Kellenberger v. Sturtevant, 7 Cush. 467. A mortgagee, not in posses-
sion, may maintain trespass against one who, under authority from the mort-
gagor, removes a building erected on the land by the mortgagor after the
execution of the mortgage ; Cole v. Stewart, 11 Cush. 181; and against the
mortgagor for cutting and carrying to market timber-trees standing on the
premises. Page v. Robinson, 10 Cush. 99, 103. See also White v. Living-
ston, 10 Ib. 259; Northampton Paper Mills, &c. v. Ames, 8 Met. 1; Perry v.
Chandler, 2 Cush. 237, The administrator of a mortgagee of real estate who
has obtained judgment and possession for foreclosure can maintain trespass
PART IV.] TRESPASS. 661

§ 615. The general owner has also a constructive posses-
sion, as against his. bailee or tenant, who, having a special
property, has violated his trust by destroying that which was
confided to him. Thus, if the bailee of a beast kill it, or if
a joint-tenant or tenant in common of a chattel destroy it, or.
if a tenant at will cuts down trees, the interest of the wrong-
doer is thereby determined, and the possession, by legal in-
tendment, immediately reverts to the owner or co-tenant, and
proof of the wrongful act will maintain the allegation that
the thing injured was in his possession! So if one enters
upon land, and cuts timber under a parol agreement, for the
purchase of the land, which he afterwards repudiates as void
under the Statute of Frauds, his right of possession also is
thereby avoided ab initio, and is held to have remained in
the owner, who may maintain trespass for cutting the trees.
And generally, where a right of entry, or other right of pos-
session is given by law, and is afterwards abused by any act
of unlawful force, the party is a trespasser ab initio ;° but if

 

against an heir at law of the mortgagee for cutting and carrying away wood
and timber from the mortgaged premises, the possession during the time
necessary to foreclose the mortgage being wholly the possession of the ad-
ministrator. Palmer v. Stevens, 11 Cush. 147,150. See also Wentworth v
Blanchard, 37 Maine, 14; Bigelow v. Hillman, Ib. 52; Blaisdell v. Roberts,
Ib. 239.]

'LCo. Litt. 57 a; Id. 200 a,b; Countess of Salop v. Crompton, Cro. El,
777, 784; 5 Co. 18, 8. C.; Phillips v. Covert, 7 Johns. 1; Erwin v. Olm-
stead, 7 Cowen, 229 ; Campbell v. Procter, 6 Greenl. 12; Daniels v. Pond,
21 Pick. 367; Allen v. Carter, 8 Pick. 175; Keay v. Goodwin, 16 Mass. 1.
‘Trespass will lie by one tenant in common against another, for any act of
permanent injury to the inheritance, such as making pits in the common,
digging turves, and the like, when not done in the lawful exercise of a right
of common. Wilkinson v. Haggarth, 11 Jur. 104. A tenant at will, by re-
fusing to quit the premises, becomes a trespasser. Ellis v. Paige, 1 Pick. 43 ;
Rising v. Stannard, 17 Mass. 282. [If the bailee of a chattel, who has no
right as against the bailor, to retain or dispose of it, mortgage it as security
for his own debt, and the mortgagee take possession under the mortgage, the
bailor may maintain trespass against the mortgagee without a previous de-
mand. Stanley v. Gaylord, 1 Cush. 536.]

2 Suffern v. Townsend, 9 Johns. 35.

3 The Six Carpenters’ case, 8 Co. 145; Adams v. Freeman, 12 Johns.
408; [Malcom v. Spoor, 12 Met. 279; Tubbs v. Tukey, 3 Cush, 438.]

VOL. II. 56
662 LAW OF EVIDENCE. [PART Iv.

the wrong consists merely in the detention of chattels, be-
yond the time when they ought to have been returned, the
remedy is another form of action.

§ 616. But where the general owner has conveyed to
another the exclusive right of present possession and enjoy-
ment, retaining to himself only a reversionary interest, the
possession is that of the lessee, or bailee, who alone can
maintain an action of trespass for a forcible injury to the
property ; the remedy of the general owner or reversioner
being by an action upon the case.? Thus a tenant for years
may have an action of trespass for cutting down trees ;?
and a tenant at will may sue in this form for throwing down
the fences erected by himself, and destroying the grass;‘ or
the lessee of a chattel, for taking and carrying it away dur-
ing the term ;° the lessor or general owner never being per-
mitted to maintain this action, for an injury done to the
property while it was in the possession of the lessee, or of a
bailee, entitled to the exclusive enjoyment.6 But the exist-

 

1 Gardiner v. Campbell, 15 Johns. 401. [So where a ship-owner who had
engaged to carry a passenger, refuses to carry him, and proceeds on the voy-
age without giving the passenger reasonable opportunity to remove his lug-
gage, or with the intent to carry it beyond his reach, he thereby terminates
the contract of carriage, and is liable in trespass for the carrying away of the
luggage. Holmes v. Doane, 3 Gray, 329.]

2 Chitty on Plead. 195, 196, (7th ed.); Lienow v. Ritchie, 8 Pick. 235.
[But see Davis v. Nash, 32 Maine, 411. A reversioner, who has by wrong
regained possession of land which was under a lease, may maintain trespass
against a mere stranger who has invaded his possession. Rollins v. Clay, 33
Maine, 132.]

3 Evans v. Evans, 2 Campb. 491; Blackett v. Lowes, 2 M. & S. 499.

4 Little v. Palister, 3 Greenl. 6.

5 Corfield v. Coryell, 4 Wash. 371, 8387; Ward v. Macauley, 4 T. R. 489;
Gordon v. Harper, 7 T. R. 9.

6 Ibid.; Campbell v. Arnold, 1 Johns. 511; Tobey v. Webster, 3 Johns.
468. But the owner of the subsoil may maintain trespass against one who
has the exclusive right to the possession of the surface, as, for example, to
cut the grass, if the latter should make holes in the earth, of such a depth as
to penetrate into the subsoil, and so interfere with the rights of the owner.
Cox v. Glue, 12 Jur. 185; 5M. G. & 8. 533. If the injury merely affects
PART IV.] TRESPASS. 668

ence of a mere easement in land will not impair or affect the
possession of the owner of the soil. Thus, for example, the
existence of a public way over the plaintiff’s land will not
prevent him from maintaining an action of trespass against
a stranger, who digs up the soil, or erects a building within
the limits of the highway ;} and proof of the plaintiff’s pos-
session of the land adjoining the highway is presumptive
evidence of his possession of the soil ad medium filum vie?

§ 617. Where the subject of the action is a partition fence
between the lands of two adjoining proprietors, it is presumed
to be the common property of both, unless the contrary is

 

the surface, and not the subsoil, as, by riding over it, the remedy belongs
only to the owner of the surface. Ibid; [Lyford v. Toothaker, 39 Maine,
28.]

1 Cortelyou v. Van Brundt, 2 Johns. 857, 363; Gidney v. Earl, 12 Wend.
98; Grose v. West, 7 Taunt. 39; Stevens v. Whistler, 11 East, 51; Robbins
v. Borman, 1 Pick. 122; Adams v. Emerson, 6 Pick. 57; Perley v. Chand-
‘ler, 6 Mass. 454; [Hunt v. Rich, 38 Maine, 195. A railroad corporation
has a right to cut the trees growing in the strip of land which they have
taken for their road, whether such. trees are for shade, ornament, or fruit,
and whether such cutting be at the time of laying out their track, or after-
wards; and the burden of proof does not rest on the corporation to show
that the trees were cut for the purposes of the road. Brainard v. Clapp, 10
Cush. 6,11. One person had aright of way over another’s land. The owner
of the soil, and the possessor of the easement, joined in erecting a gate across
such way, the owner of the soil promising that it should remain. He subse-
quently, without the consent of the owner of the right of way, removed the
gate, and the latter brought trespass against him, and it was held that it
would not lie. Dietrich v. Berk, 24 Penn. State R. 470.]

2 Cook v. Green, 11 Price, 736; Headlam v. Headley, Holt, Cas. 463;
Grose v. West, 7 Taunt. 39. [A railroad corporation, building and main-
taining as part of their road a bridge across a river, in such manner as to
obstruct the passage of the water, are liable to an action of tort by the own-
er of the land thereby flowed, unless they show that they have taken reason-
able precautions to prevent unnecessary damage to his land. In such cases,
it is for the defendants to show that their acts are strictly within the powers
conferred by their charter. Mellen v. Western R. R. Corp. 4 Gray, 801;
Hazen v. Boston, &. R. R. 2 Ib. 574. See also Brainard v. Clapp, 10 Cush.
6. And such a corporation is liable as a trespasser, for entering upon land
for the purpose of constructing its road, if the written location does not cover
the land so entered upon. Hazen v. Boston, &. R. R. 2 Gray, 574, 581.]
664 LAW OF EVIDENCE. [PART Iv.

shown! If it is proved to have been originally built upon
the land of one of them, it is his; but if it were built equally
upon the land of both, though at their joint expense, each is
the owner in severalty of the part standing on his own land?
If the boundary is a hedge, and one ditch, it is presumed to
belong to him on whose side the hedge is; it being presumed
that he who dug the ditch threw the earth upon his own
land, which alone was lawful for him to do, and that the
hedge was planted, as is usual, on the top of the bank thus
raised. But if there is a ditch on each side of the hedge, or
no ditch at all, the hedge is presumed to be the common
property of both proprietors. If a tree grows so near the
boundary line, that the roots extend into the soil of each pro-
prietor, yet the property in the tree belongs to the owner of
the land in which the tree was originally sown or planted?
But if the tree stands directly upon the line between adjoin-
ing owners, so that the line passes through it, it is the com-
mon property of both, whether it be marked as a boundary
or not; and trespass will lie, if one cuts it down without the
consent of the other.

§ 618. It may further be observed, that proof of an actual
and exclusive possession by the plaintiff, even though it be
by wrong’, is sufficient to support this action against a mere
stranger or wrongdoer, who has neither title to the posses-
sion in himself, nor authority from the legal owner.’ And

 

1 Wiltshire v. Sidford, 8 B. & C. 259, note (a) ; Cubitt ». Porter, Id. 257.

2 Matts v. Hawkins, 5 Taunt. 20.

3 Vowles v. Miller, 3 Taunt. 138, per Lawrence, J.

4 Archbold’s N. P. 328.

5 Holder v. Coates, 1 M. & Malk.112; Masters v. Pollie, 2 Roll. Rep. 141.
See also Dig. lib. xlvii. tit. 7, 1. 6, § 2, with which agrees the Instit. lib. ii.
tit. 1, § 31, as expounded by Prof. Cooper. See Cooper’s Justinian, p. 80.

6 Griffin v. Bixby, 12 N. Hamp. R. 454.

7 Graham v. Peat, 1 East, 244; Harker v. Birkbeck, 3 Burr. 1556, 1563;
Catteris v. Cowper, 4 Taunt. 547; Revett +. Brown, 5 Bing. 9; Townsend
v. Kerns, 2 Watts, 180; Barnstable v. Thacher, 3 Met. 239; Shrewsbury v.
Smith, 14 Pick. 297; Fiske v. Small, 12 Shepl. 453; Brown v. Ware, Id.
411; [Clancy v. Houdlette, 39 Maine, 451; Tyson v. Shueey, 5 Md. 540;
Linard v. Crossland, 10 Texas, 462.]
PART IV.] TRESPASS. 665

where both parties rely on a title by mere possession, with-
out any evidence of a legal title, a contract by one of them,
to purchase the land from the true owner, is admissible in
evidence to show the character of his possession! So the
possession of her bedroom, by a female servant in the house,
it seems will be sufficient to entitle her to maintain this ac-
tion against the wrongdoer, who forces himself into it while
she is in bed there? The finder of goods, also, and the
prior occupant of land, or its produce, has a sufficient pos-
session to maintain this action, against any person except
the true owner.2 And the owner of the sea-shore has the
possession of wrecked property, ratione soli, against a stran-
ger.t| The wrongful possessor, however, though he be tenant
by sufferance, has no such remedy against the rightful owner,
who resumes the possession;° though this resumption of
possession will not defeat the prior possessor’s action of
trespass against a stranger.®

§ 618 a. In trespass quare clausum fregit, if the close is
particularly described by its boundaries, it will be necessary
to prove them as laid; for if one may be rejected, they all
may be disregarded, and the identity lost; but it will not be

 

1 Moore v. Moore, 8 Shep]. 350.

2 Lewis v. Ponsford, 8 C. & P. 687.

3 2 Saund. 47 b,c, d, note by Williams; Rackham v. Jessup, 3 Wils.
332.

4 Barker v. Bates, 13 Pick. 255. But where a roll of bank-notes was
dropped and lost in a shop, by a transient, stranger, and afterwards found
and picked up by another customer, it was held that the latter was entitled
to the custody of them, against the shopkeeper, who claimed them ratione
soli ; the place where a lost article is found, constituting no exception to the
general rule, that the finder is entitled to the custody, against all but the
true owner. Bridges v. Hawkesworth, 15 Jur. 1079.

5 Taunton v. Costar, 7 T. R. 431: Turner v. Meymott, 1 Bing. 158;
Sampson v. Henry, 13 Pick. 36. é

6 Cutts v. Spring, 15 Mass. 235. In trespass qguare classum fregit, if
title to the freehold is asserted by each party, the burden of proof is on the
defendant to make out that the title is in himself. If each party shows a
title precisely equal to the other, the defendant fails. Heath v. Williams, 12
Shepl. 209.

56 *
666 LAW OF EVIDENCE. [PART IV.

necessary to prove a title to the entire close.1 The identity,
thus necessary to be established, may be proved by the testi-
mony of any competent witness who is acquainted with the
lines and monuments of the tract?

§ 619. But though such proof of possession, actual or con-
structive, will maintain the averment of the plaintiff’s pos-
session, yet a mere right of entry on’ lands is not sufficient.
Hence a disseisee, though he may maintain trespass for.the
original act of disseisin, cannot have this action for any sub-
sequent injury, until he has acquired the possession by reén-
try; which will relate back to the original disseisin, and
entitle him to sue in trespass for any intermediate wrong to
the freehold.* Hence, also, a deed of mere release and quit-
claim, without proof of possession at the time by the grantor,
or of an entry by the grantee, though admissible in evidence,
is not sufficient to prove a possession.*

§ 620. If the animals fere nature are the subject of this
action, the plaintiff must show, either that they were already
captured, or domesticated, and of some value; or, that they
were dead; or, that the defendant killed or took them on: the
plaintiff’s ground; or, that the game was started there, and
killed or captured elsewhere, the plaintiff asserting his local

1 See ante, Vol. 1, § 62; Wheeler v. Rowell, 7 N. Hamp. 515; [Tyson v.
Shueey, 5 Md. 540.]

2 Leadbetter v. Fitzgerald, 1 Pike, 488. [In trespass, a count for break-
ing and entering the plaintiff’s dwelling-house and taking and carrying
away goods therefrom, is not supported by proving a trespass in taking
and carrying away goods only. Eames v. Prentice, 8 Cush. 337; Sampson
v. Henry, 13 Pick. 36.]

3 Liford’s case, 11 Co. 51; 3 Bl. Comm. 210; Bigelow v. Jones, 10 Pick.
161; Blood v. Wood, 1 Met. 528; Kennebeck Prop’rs v. Call, 1 Mass. 486.
And see Taylor v. Townsend, 8 Mass. 411,415; Tyler v. Smith, 8 Met.
599; [King v: Baker, 25 Penn. State R. 186.] But the disseisor does not,
by the disseisin, acquire any right to the rents and profits, nor to trees sev-
ered by him or:by another from the freehold; but the owner may take
them. Brown v. Ware, 12 Shepl. 411.

4 Marr v. Boothby, 1 Applet. 150.
PART Iv.] TRESPASS. 667

possession and property by joining in the pursuit. But pur-
suit alone gives no right of property. Therefore where one
was hunting a fox, and another, in sight of the pursuer,
killed and catried him off, it was held that trespass could not
be maintained against him.? So, where the parties were
owners of several boats employed in fishing, and the plain-
tiff’s boat cast a seine round a shoal of mackerel, except a
small opening which the seine did not quite fill up, but
through which, in the opinion of experienced persons, the
fish could not have escaped; and the defendant’s boat came
through the opening and took the fish ; it was held that the
plaintiff’s possession was not complete, and that therefore he
could not maintain trespass for the taking?

§ 621. (2.) The plaintiff must, in the next place, prove
that the injury was committed by the defendant, with force.
And the defendant will be chargeable, if it appear that the
act was done by his direction or command, or by his servant
in the course of his master’s business, or while executing his
orders with ordinary care; or if it be done by his domestic
or reclaimed animals.* So, if the defendant participated with
others in the act, though it were but slightly; or, if he pro-
cured the act to be done by inciting others. But it seems

 

1 Treland v. Higgins, Cro. El. 125; Grymes v. Shack, Cro. Jac. 262;
Churchward v. Studdy, 14 East, 249; 6 Com. Dig. 386, Trespass, A. (1) ;
Sutton v. Moody, 2 Salk. 556; Pierson v. Post, 8 Caines, 175.

2 Pierson v. Post, 3 Caines, 175.

3 Young v. Hichens, 1 Dav. & Meriv. 592; 6 Ad. & El. N.S. 606, S. C,

4 Gregory v. Piper, 9 B. & C. 591; Broughton v. Whallon, 8 Wend. 474 ;
6 -Com. Dig. 392, Trespass, C. (1); Root v. Chandler, 10 Wend. 110.
Where the allegation was, that the defendant struck the plaintiff’s cow sev-
eral blows, whereof she died, and the evidence was, that after the beating,
which was unmerciful, the plaintiff killed the cow to shorten her miseries, it
was held no variance. Hancock v. Southall, 4 D. & R. 202.

5 Flewster v. Royle, 1 Campb. 187; Stonehouse v. Elliott, 6 T. R. 315;
Parsons v. Lloyd, 3 Wils. 341; Barker v. Braham, Id. 368. Evidence of
the conduct of the parties before the trespass, is receivable, if it had refer-
ence to the trespass; but evidence of the conduct of one of several trespass-
ers, long after the trespass, is not receivable against the others. Newton v.
Wilson, 1 C. & K. 537.
668 LAW OF EVIDENCE. [PART Iv.

that persons, entering a dwelling-house in good faith, to
assist an officer in the service of legal process, are not tres-
passers, though he entered unlawfully, they not knowing
how he entered. So, if the defendant unlawfully exercised
an authority over the goods, in defiance or exclusion of the
true owner, as where, being a constable, he levied an execu-
tion on the plaintiff’s goods in the hands of the execution
debtor, who was a stranger, taking an inventory of them,
and saying he would take them away unless security were
given; though he did not agtually touch the goods, he is a
trespasser. So, if the defendant were one of several part-
ners in trade, and the act were done by one of the firm, pro-
vided it were of the nature of a taking, available to the part-
nership, and they all either joined in ordering it, or afterwards
knowingly participated in the benefit of the act, this is evi-
dence of a trespass by all.3 But if a servant were ordered to
take the goods of another, instead of which he took the
goods of the defendant, the master will not be liable; unless
in the case of a sheriff’s deputy, which the law, on grounds
of public policy, has made an exception.!

§ 622. It will not be necessary for the plaintiff to prove
that the act was done with any wrongful intent ; it being
sufficient, if it was without a justifiable cause or purpose, °
though it were done accidentally, or by mistake.6 And

 

1 Oystead v. Shad, 13 Mass. 520, 524.

2 Wintringham v. Lafoy, 7 Cowen, R. 735; Miller v. Baker, 1 Met. 27;
Gibbs v. Chase, 10 Mass. 125; Robinson v. Mansfield, 13 Pick. 139; Phil-
lips v. Hall, 8 Wend. 610. And see Boynton v. Willard, 10 Pick. 166;
Rand v. Sargeant, 10 Shepl. 326.

8 Petrie v. Lamont, 1 Car. & Marsh. 93.

4 McManus »v. Crickett, 1 East, 106; Germantown Railroad Co. v. Wilt,
4 Whart. 143; Fox v. Northern Liberties, 3 Watts & Serg. 123; Saunder-
son v. Baker, 3 Wils. 312; Ackworth v. Kempe, 1 Doug. 49; Grinnell ».
Phillips, 1 Mass. 580.

5 1 Chitty on Plead. 192, (7th edit.) ; Covell v. Laming, 1 Campb. 497;
Colwill v. Reeves, 2 Campb. 575; Baseley v. Clarkson, 3 Lev. 37; Higgin-
son v. York, 5 Mass. 341; Hayden v. Shed, 11 Mass. 500, per Jackson, J.;
Id. 507. See Guile v. Swan, 19 Johns. 381, where the owner of a balloon,
which accidentally descended into the plaintiff’s garden, was held liable in
PART Iv.| TRESPASS. 669

though the original entry or act of possession were by au-
thority of law, yet.if a subsequent act of force be unlawfully
committed, such as would have made the party a trespasser
if no authority or right existed, he is a trespasser ab initio.
If the authority were a license in fact, the remedy is not in
trespass, but in an action upon the case.2 Nor is it neces-
sary, in an action of trespass quare clausum fregit, to prove
that the defendant actually entered upon the land; for evi-
dence that he stood elsewhere, and shot game on the plain-
tiff’s land, will support the averment of an entry.? And after
a wrongful entry and the erection of a building, for which
the owner has already recovered damages, the continuance of
the building, after notice to remove it, is a new trespass, for
which this action may be maintained.*

fy 623. It is essential to this form of remedy, that the act
be proved to have been done with force directly applied, this
being the criterion of trespass ; but the degree of force is not
material.6 While the original force or vis impressa contin-
ues, so as to become the proximate cause of the injury, the
effect is immediate, and the remedy may be in trespass; but
where the original force had ceased before the injury com-

 

trespass. [And it is no defence to trespass for cutting timber on the plain-
 tiff’s land, that the plaintiff by mistake led the defendant to believe that

the timber was on his (the defendant’s land). Pearson v. Inlow, 20 Miss.
(5 Bennett,) 322. See, also, Langdon v. Bruce, 1 Williams, (Vt.) 657;
Pfeiffer v. Grossman, 15 Ill. 53.]

1 The Six Carpenters’ case, 8 Co. 145; .Shorland v. Govett, 5B. & C.
485; Supra, § 615; Dye v. Leatherdale, 3 Wils. 20.

2 Ibid.; Cushing ». Adams, 18 Pick. 110. Trespass does not lie against
a tenant by sufferance, until after entry upon him by the lessor. Rising v.
Stannard, 17 Mass. 282; Dorrell v. Johnson, 17 Pick, 263. Whether the
landlord may expel him by force, and thereby acquire a lawful possession to
himself, guere ; and see Newton v. Harland, 1 Man. & Grang. 644, that he
may not. But see contra, Harvey v. Lady Brydges, 9 Jur. 759; 14 M. &
W. 437.

3 Anon, cited per Lord Ellenborough in Pickering v. Rud, 1 Stark. R. 56,
58. But see Keble v. Hickringill, 11 Mod. 74, 130.

4 Holmes v. Wilson, 10 Ad. & El. 508.

5 Harvey v. Brydges, 14 M. & W. 437; The State v. Armfield, 5 Ired.
207. .
670 LAW OF EVIDENCE. [PART Iv.

menced, trespass cannot be maintained, and the only remedy
is by an action on the case.}

§ 624. The allegation of the time when the trespass was
committed is not ordinarily material to be proved ; the plain-
tiff being at liberty to prove a trespass at any time before the
commencement of the action, whether before or after the day
laid in the declaration. But in trespass with a continuando,
the plaintiff ought to confine himself to the time in the
declaration ; yet he may waive the continuando, and prove a
trespass on any day before the action brought; or) he may
give in evidence only part of the time in the continuando?
So, where a trespass is alleged to have been done between a
certain day, and the day of the commencement of the action,
the plaintiff may prove either one trespass before the certain
day mentioned, or as many as he can within the period of
time stated in the declaration, but he cannot do both, and
must waive one or the other.2 And in trespass against sev-

 

11 Chitty on Plead. 140, 141, 199, (7th edit.) ; Smith v. Rutherford, 2S. .
& R. 358.

2 Co. Lit. 288 5; Bull. N. P. 86; Webb v. Turner, 2 Stra. 1095; Hume
v. Oldacre, 1 Stark. R. 351; Seedinion v. Pierpont, Anth. 42.

3 2 Selw. N. P. 1341, per Gould, J.; Pierce v. Pickens, 16 Mass. 470, 472.
In this case, the law on this subject was thus stated by Jackson, J.: “ Origi-
nally every declaration in trespass seems to have been confined to one single
act of trespass. When the injury was of a kind that could be continued
without intermission, from time-.to time, the plaintiff was permitted to de-
clare with a continuando, and the whole was considered as one trespass. In
more modern times, in order to save the trouble and expense of a distinct
writ, or count, for every different act, the plaintiff is permitted to declare,
as is done in this case, for a trespass on divers days and times between one
day and another ; and, in that case, he may give evidence of any number of
trespasses within the time specified. Such a declaration is considered as if
it contained a distinct count for every different trespass. This is for the ad-
vantage and ease of the plaintiff; but he is not obliged to avail himself of
the privilege, and may still consider his declaration as containing one count
only, and as confined to a single trespass. When it is considered in that
light, the time becomes immaterial, and he may prove a trespass at any time
before the commencement of the action, and within the time prescribed by
the Statute of Limitations.
PART Iv.] TRESPASS. 671

eral, the plaintiff, having proved a joint trespass by all, will
not be permitted to waive that, and give evidence of another
trespass by one only;! nor will he be permitted, where the
declaration contains but one count, after proof of one tres-
pass, to waive that and prove another.2 So, where the ac-
tion is against three, for example, and the plaintiff proves a
joint trespass by two only, he will not be allowed to give
evidence of another trespass by all the three, even as against
those two alone.’

§ 625. In the defence of this aetion, the general issue is
not guilty; under which the defendant may give evidence
of any facts tending to disprove either of the propositions,
which, as we have seen, the plaintiff is obliged to make out
in order to maintain the action. Every defence which ad-
mits the defendant to have been, primd facie, a trespasser,
must be specially pleaded; but any matters which go to
show that he never did the acts.complained of, may be given
in evidence under the general issue. Thus, for example, un-

 

“ But it would be giving an undue advantage to the plaintiff if he could
avail himself of the declaration in both of these modes, and would frequently
operate as a surprise on the defendant. He is, therefore, bound to make his
election before he begins to introduce his evidence. ~ He must waive the ad-
vantage of this peculiar form of declaration, before he can be permitted to
offer evidence of a trespass at any other time. The rule, therefore, on this
subject was mistaken on the trial. It is not that the plaintiff shall not recover
for any trespass within the time specified, and also for a trespass at another
time; but he shall not give evidence of one or more trespasses within the
time, and of another at another time.”

1 Tait v. Harris, 1 M. & Rob. 282. See also Wynne v. Anderson, 3 C. &
P. 596. [Where two are sued jointly for a trespass upon land, and the
declaration alleges joint trespasses on certain days, there may be a verdict
against both jointly and a joint assessment of damages, for trespasses in which
they united, but there cannot be a verdict against both jointly, and a separate
assessment of damages against each for any trespasses committed by them
separately at different times. Bosworth v. Sturtevant, 2 Cush. 392.]

2 Stante v. Pricket, 1 Campb. 573.

3 Hitchen v. Teale, 2 M. & Rob. 30; Sedley v. Sutherland, 3 Esp, R. 202;
[Prichard v. Campbell, 5 Ind. 494. See also Gardner v. Field, 1 Gray, 151;
Wilderman v. Sandusky, 15 Ill. 59.]
672 LAW OF EVIDENCE. [PART Iv.

der this issue may be proved, that the plaintiff has no prop-
erty in the goods, or, that the defendant did not take them ;
or, that he did not enter the plaintiff’s close. So, the defend-
ant may show under this issue, that the freehold amd imme-
diate right of possession is in himself, or in one under whom
he claims title; thus disproving the plaintiff’s allegation, that
the right of possession is in him. Butif he acted by license,
even from the plaintiff, without claiming title in himself; ?
or, if he would justify under a custom to enter;? or, under a
right of way;* or, if the injury was occasioned by the plain-
tiffs own negligence, or was done by the defendant from any
other cause, short of such extraneous force as deprived him
of all agency in the act, it cannot be shown under this issue,
but must be specially pleaded.® So, a distress for rent, when
made on the demised premises, may be shown under this
issue; but if it were made elsewhere, or for any other cause,
it must be justified under a special plea. Matters in dis-
charge of the action must be specially pleaded ; but matters
in mitigation of the wrong and damages, which cannot be
so pleaded, may be given in evidence under the general issue.7

 

11 Chitty on Plead. 437; Dodd v. Kyffin, 7 T. R. 354; Argent v. Durrant
8 T. R. 403. See also Monumoi v. Rogers, 1 Mass. 159; Anthony v. Gil-
bert, 4 Blackf. 348; Rawson v. Morse, 4 Pick. 127; Strong v. Hobbs, 12
Met. 185. But where the plaintiff is in the actual possession and occupation
of the close, the defendant will not be permitted, under the general issue, to
prove title in a stranger, under whom he does not justify. Philpot v. Holmes,
1 Peake, R. 67; Carter v. Johnson, 2M. & Rob. 263. Nor, to give evidence
of an easement, nor of a title by prescription. Ferris v. Brown, 3 Barb. S.
C. R. 105; [Fuller v. Rounceville, 9 Foster, (N. H.) 554.]

2 Milman v. Dolwell, 2 Campb. 378; Philpot v. Holmes, 1 Peake, R. 67;
Ruggles v. Lesure, 24 Pick. 187; [Hil v. Morey, 26 Vt. 178.] -

3 Waters v. Lilley, 4 Pick. 145.

4 Strout v. Berry, 7 Mass. 385.

5 1 Chitty on Plead. 437, 438; Supra, § 94; Knapp v. Salsbury, 2 Campb.
500.

6 1 Chitty on Plead. 439.

71d. pp. 441, 442; [Briggs v. Mason, 31 Vt. 433; Collins v, Perkins, Id.
624; Linford v. Lake, 3 H.& N. 276.] But where the defendant pleaded the
general issue, to an action for taking the plaintiff’s goods, it was recently held
that he could not be permitted, under this issue, to show in mitigation of dam-
ages a repayment, after action brought, of the money produced by the sale
of the goods. Rundle v. Little, 6 Ad. & El. 174, N.S.
PART Iv.] TRESPASS. 673

And it seems, that a variance in the description of the locus
in quo, is available to the defendant under this issue, as the
allegation of place, in an action of trespass quare clausum
fregit, is essentially descriptive of the particular trespass
complained of But the variance, to be fatal, must be in
some essential part of the description ; and even the abuttals
will not be construed very strictly. Thus, if the close be
described as bounded on the east by another close, and the
proof be, that the other close lies on the north, with a point
or two towards the east; orif it be on the northeast, or
southeast ;? or if it be described as abutting on a windmill,
and the proof be, that a highway lies between it and the
windmill ;® it will be sufficient.

§ 626. The plea of liberum tenementum admits the fact,
that the plaintiff was in possession of the ‘close des¢ribed in
the declaration; and that the defendant did the acts com-
plained of; raising only the question, whether the close de-
scribed was the defendant’s freehold or not. And his title
must be proved either by deed, or other documentary evi-
dence, or by an actual, adverse, and exclusive possession for
twenty years; inasmuch as under this issue, he undertakes
to show a title in himself, which shall do away the presump-
tion arising from the plaintiff’s possession. Proof of a ten-

 

1 3 Stephens, N. P. 2642; Webber v. Richards, 10 Law Journ. 203; 1
Salk. 452, per Holt, C.J.; Taylor v. Hooman, 1 Moore, 161; Harris v. Cook,
8 Taunt. 539. :

2 Mildmay v. Dean, 2 Roll. Abr. 678; Roberts v. Karr, 1 Taunt. 495, 501,
per Heath, J.

3 Nowell v. Sands, 2 Roll. Abr. 677,678. And see Doe v. Salter, 13
East, 9; Brownlow v. Tomlinson, 1 M. & G. 484; Walford v. Anthony,
8 Bing. 75; Lethbridge v. Winter, 2 Bing. 49; Doe v. Harris, 5 M. & S.
326,

* Cocker v. Crompton, 1 B. & C. 489; Lempriere v. Humphrey, 3 Ad.
& El. 181; Caruth v. Allen, 2 McCord, 126; Doe v. Wright, 10 Ad. & El.
763; Ryan v. Clarke, 13 Jur. 1000. [If the defendant claims title under
the same person through whom the plaintiff claims, the plaintiff need not
prove title in such person, as the defendant by relying on him admits that
he had the title. McBurney »v. Cutler, 18 Barb. 203.]

5 Brest v. Lever, 7M. & W. 593.

VOL. II. 57
674 LAW OF EVIDENCE. [PART Iv.

ancy in common with the plaintiff is not admissible under
this issue. If the defendant succeeds in establishing a title
to that part of the close on which the trespass was commit-
ted, he is entitled to recover, though he does not prove a title
to the whole close ; the words “ the close in which,” &c., con-
stituting a divisible allegation?

§ 627. The plea of license may be supported by proof of a
license in law as-well as in fact; and it is immaterial whether
it be expressed, or implied from circumstances. Thus, an
entry to execute legal process, or to distrain for rent, or for
damage feasant; or an entry by a remainder-man, or a rever-
sioner, to see whether waste has been done, or repairs made ;
or by a commoner, to view his cattle; or by a traveller, into
an inn; or by a landlord, to take possession, after the expira-
tion of the tenant’s lease ; or an entry into another’s house at
usual and reasonable hours, and in the customary manner,
for any of the ordinary purposes of life, may be given in
evidence under this plea? So, an entry after a forfeiture by
non-performance of covenants, the lease containing a clause

 

1 Voyce v. Voyce, Gow, R. 201; Roberts v. Dame, 11 N. Hamp. 226.

2 Smith v. Royston, 8 M. & W. 381; Richards v. Peake, 2 B. & C. 918.

3 5 Com. Dig. 806, tit. Pleader, 8 M. 35; Ditcham v. Bond, 3 Campb.
524; Feltham v. Cartwright, 5 Bing. N. C. 569. [A license from a mother
to a son to open the family tomb to deposit therein the corpse of a deceased
son, will be implied from the relationship of the parties, the exigencies of
the case, and the well-established usages of a civilized and Christian com-
munity.” Lakin v. Ames, 10 Cush. 198, 221. A person who holds himself
out to the public as a wharfinger and warehouse-man, thereby licenses all
persons to enter his premises who have occasion to do so in connection with
his business. But his business being a merely private one, he may terminate
the general license, by giving any person notice not to come on his premises,
and if the person so notified enters on his premises, trespass will lie against
him. Bogert v. Haight, 20 Barb. 251.

A traveller on a highway which is made impassable by a sudden and
recent obstruction, may pass over the adjoining fields, so far as it is neces-
sary to avoid the obstruction, and doing no unnecessary damage, without
being guilty of a trespass. Campbell v. Race, 7 Cush. 408, 410; Taylor v.
Whitehead, 2 Doug. 475; 8 Dane, Ab. 258; Holmes v. Seely, 19 Wend.
507; Newkirk v. Sabler, 9 Barb. 652.]
PART IV.] TRESPASS. 675

that upon such non-performance the landlord may enter and
expel the tenant, may also be shown in the like manner.
Evidence of a familiar intimacy in the family, may also be
given in support of this plea.? So, if the plaintiff’s goods,
being left in the defendant’s building, were an incumbrance,
and he removed them to the plaintiff’s close ; or if the plain-
tiff unlawfully took the defendant’s goods, and conveyed
them within the plaintiff’s close, and the defendant there-
upon, making fresh pursuit, entered and retook them; the
facts, in either case, furnish, by implication, evidence of a
license to enter The mere circumstance, that the defend-
ant’s goods were upon the plaintiff’s close, and therefore he
entered and took them, is not alone sufficient to justify the
entry* Butif the owner of the land had sold the goods there
to the defendant, a license to enter and take them is implied
in the contract.6 The evidence must cover all the trespasses
proved, or it will not sustain the’ justification.® So, if a
license to erect and maintain a wall be pleaded, and the
evidence be of a license to erect only, the plea is not sup-
ported.” Evidence of a verbal agreement for the sale of the
land by the plaintiff to the defendant, is admissible under a
plea of license to enter, and may suffice to support the plea
as to the entry only; but it is not sufficient to maintain the
plea, in respect to any acts which a tenant at will may not

 

1 Kavanagh v. Gudge, 7 Man. & Gr. 316; 7 Scott, N. R. 1025. [So
where a contract to erect a building on the land of another has been re-
scinded, property put on the land by the contractor in pursuance of the
contract, may be removed by him after the rescission, without trespass, if
no unnecessary damage is done. Armington v. Larrabee, 10 Cush. 512;
Nettleton v. Sikes, 8 Met. 34.]

2 Adams v. Freeman, 12 Johns. 408.

3 Rex v. Sheward, 2 M. & W. 424; Patrick v. Colerick, 3 M. & W.
483.

4 Anthony v. Harreys, 8 Bing. 186; Williams v. Morris, 8 M. & W.
488.

5 Wood v. Manley, 11 Ad. & El. 34; Nettleton v. Sikes, 8 Met. 34.

6 Barnes v. Hunt, 11 East, 451; Symons v. Hearson, 12 Price, 369, 390,
per Hullock, B. ;

7 Alexander v. Bonnin, 4 Bing. N. C. 799, 813.
676 LAW OF EVIDENCE. . [PART Iv.

lawfully do! Nor will such license avail to justify acts done
after it has been revoked.”

§ 628. Under the plea of a license in law, the plaintiff can-
not give in evidence a subsequent act of the defendant,
which rendered him a trespasser ab initio; but it must be
specially replied? So, if the defendant justifies as prevent-
ing a tortious act of the plaintiff, and the plaintiff relies on a
license to do the act, he cannot give the license in evidence
under the general replication of de injurid, but must allege
it in a special replication.‘

§ 629. Where the trespass is justified, under civil or crim-
inal process, whether it be specially pleaded, or given in evi-
dence under a brief ‘statement, filed with the general issue,
the party must prove every material fact of the authority.
under which he justifies. If the action is by the person
against whom the process issued, it is sufficient for the officer
who served it, to prove the process itself, if it appear to have
issued from a court of competent jurisdiction, under its seal,
and to be tested by the Chief Justice, or other magistrate
whose attestation it should bear, and be signed by the clerk
or other proper officer. And if it is mesne process and is
returnable, he should in ordinary cases show that it is re-
turned; unless he is a mere bailiff or servant, who is not bound
to make a return.’ But in trespass against the plaintiff in a

1 Carrington v. Roots, 2M. & W. 248; Cooper v. Stower, 9 Johns. 381;
Suffern v. Townsend, Id. 35.

2 Cheever v. Pearson, 16 Pick. 266; [Taplin v. Florence, 3 Eng. Law
& Eq. R. 520.]

3 Aitkenhead v. Blades, 5 Taunt. 198. And see Taylor v. Cole, 8 T. R.
292, 296, per Buller, J.; Six Carpenters’ case, 8 Co. 146.

4 Taylor v. Smith, 7 Taunt. 157. See post, §§ 632, 633.

5 Britton v. Cole, 1 Salk. 408; 1 Ld. Raym. 305; Barker «. Miller,
6 Johns. 195; Blackley v. Sheldon, 7 Johns. 82; Crowther v. Ramsbottom,
7 T. R. 654; Cheasley v. Barnes, 10 East, 73; Middleton c. Price, 1 Wils.
17; Rowland v. Veale, Cowp. 20; [Twitchell v. Shaw, 10 Cush. 46; Fisher
v. McGirr, 1 Gray, 1; Kennedy v. Duncklee, Ib. 72; Ross v. Philbrick,
89 Maine, 29; Keniston v. Little, 10 Foster, (N. H.) 318; Edmonds »v. Buel,
23 Conn. 242; Billings v. Russell, 23 Penn. State R. 189.]
PART IV.] TRESPASS. - 6TT

former action, or against a stranger, or where the action is
brought by a stranger whose goods have been wrongfully
taken by the sheriff, under an execution issued against
another person, the sheriff or his officers, justifying under
the process, will be held also to prove the judgment upon
which it issued! If the defendant in fact had the process in
his hands at the time, he may justify under it, though he
then declared that he entered the premises for another cause.?

§ 630. If the defendant justifies the destruction of the
plaintiff's property, by the defence of his own, he must aver
and prove, that he could not otherwise preserve his own
property? If, however, the plaintiffs dog were killed in
the act of pursuing the defendant’s deer in his park, or
rabbits in his warren, or poultry within his own grounds,
this will justify the killing without proof of any higher
necessity.*

§ 631. Where the issue is upon a right of way, the defend-.
ant must prove either a‘deed of grant to him, or those under
whom he claims, or an exclusive and uninterrupted enjoy-
ment for at least twenty years.© If the issue is upon a right
to dig and take gravel or other material for necessary repairs,
the defendant must allege and prove that the repairs were

 

1 Martyn v. Podger, 5 Burr. 2631; Lake v. Billers, 1 Ld. Raym. 738 ;
Britton v. Cole, 1 Salk. 408, 409.

2 Crowther v. Ramsbottom, 7 T. R. 654.

3 Wright v. Ramscott, 1 Saund. 84; Vere v. Cawdor, 11 Hast, 568; Jan-
son v. Brown, 1 Campb. 41.

4 Barrington v. Turner, 3 Lev. 28; Wadhurst v. Damme, Cro. dine: 45;
Janson v. Brown, 1 Campb. 41; Ware v. Cawdor, 11 East, 568, 569. [In
trespass for the destruction of sao destroyed by blowing up the building
in which they were stored to prevent the spread of a conflagration in a city,
the Common-Law plea of necessity is a good plea in justification; and it is
not necessary to aver in it that the defendant was a resident of, or owner of
property in the city, or that his own property was in danger. Hale v. Law-
rence, 8 Zabr. 590.]

5 Hewlins v, Shippam, 5 B. & C. 221; Cocker v. Cowper, 1 Cr. M. & R.
418. See supra, tit. PRESCRIPTION, § 537-546.

57*
678 LAW OF EVIDENCE. [PART Iv.

necessary, and that the materials were used or in the process
of being used for that purpose.

§ 632. If a right of way, or any other easement is pleaded
in justification of a trespass on lands, whether it be in the
defendant himself, or in another under whose command he
acted, the plaintiff cannot controvert this right by evidence
under the general replication of de injurid sud, but must
specifically traverse the right as claimed.? And where a right
of way is claimed, under a non-existing grant from a person
who was seised in fee, and the plaintiff traverses the .grant,
he cannot, under this issue, dispute the seisin in fee for the
purpose of rebutting the presumption of a grant, for it is im-
pliedly admitted by the replication?

§ 633. Wherever the defendant pleads matter of fact in
justification, as distinguished from mere matter of record,
title, or authority, it may be traversed by the plaintiff, by the
general replication de injurid sud absque tali causa This
replication being a traverse of the whole plea, the plaintiff is
at liberty under it to adduce any evidence disproving the
facts alleged in the plea. But he cannot go into any evidence
of new matter, which shows that the defendant’s allegation,
though true, does not justify the trespass. Thus, in an action
for trespass and false imprisonment, if the defendant justifies
the commitment as a magistrate, for an offence which is bail-
able, to which the plaintiff replies de injurid, he cannot, under
this replication, avoid the justification by evidence of a tender
and refusal of bail. So, if the defendant justifies an assault
and battery by the plea of son assault demesne, and the plain-
tiff replies de injurid, he will not be permitted to show that
the defendant, having entered the plaintifi’s house, misbe-

 

1 Peppin v. Shakespeare, 6 T. R. 748.

2 Cogate’s case, 8 Co. 66. And see Lowe v. Govett, 3 B. & Ad. 863.
3 Cowlishaw v. Chesyln, 1 Cr. & J. 48.

See Gould on Pleading, ch. vii. § 26-80.

5 Sayre v. E. of Rochford, 2 W. BI. 1165, 1169, per De Grey, C. J.
PART IV.] TRESPASS. 679

haved there Thus, also, in trespass by a tenant, against
his landlord, for turning him out of possession, where the
defendant pleaded a fact by which the lease was forfeited, to
which the plaintiff replied de injurid, it was held, after proof
of the fact of forfeiture, that the plaintiff under this replica-
tion could not prove the acceptance of rent by the defendant,
as a waiver of the forfeiture, for he should have replied it
specially, in avoidance of the plea.? The general rule is, that
all matters which confess and avoid, whether alleged by the ©
plaintiff or defendant, must be specially pleaded ; otherwise,
the proof of them is not admissible.’

§ 634. The same principle applies to all cases, where the
defendant justifies the trespass by a plea answering the gist
of the action, and the plaintiff would avoid the plea by
proving that the defendant exceeded the authority under
which he acted, and thus became a trespasser ab initio. In
such cases the plaintiff cannot show the excess, under a gen-
eral: replication; but must distinctly allege it in a special
replication, in the nature of a new assignment Thus, in
trespass for taking and impounding the plaintiff’s cattle,
where the defendant justifies for that he took them damage-
Jfeasant, the plaintiff will not be permitted, under a general .
replication, to prove that the defendant abused one of the
beasts, so that it died, whereby he became a trespasser ab
initio ; for he should have specially replied the excess.2 So,
in trespass for breaking and entering the plaintiff’s house
and expelling him from it, where the defendant justified the
breaking and entering, under a writ of fiert facias, which it
was held, covered the expulsion, it was also held, that the

1 King v. Phippard, Carth. 280.

2 Warrall v. Clare, 2 Campb. 629.

3 2 Stark. Ev. 825.

4 Gould on Pleading, ch. vi. part 2, § 110; 1 Chitty on Pleading, pp. 512,
518, 542-552; Monprivatt v. Smith, 2 Campb. 175; Warrall v. Clare, Id.
629.

5 Gates v. Bayley, 2 Wils. 313; Gargrave v. Smith, 1 Salk. 221; Bull. N.
P. 81; Moore v. Taylor, 5 Taunt. 69.
680 LAW OF EVIDENCE. [PART Iv.

plaintiff could not be permitted to rely on the expulsion as
an excess, without specially replying it. The replication of
excess admits the justification as alleged, and precludes the
plaintiff from offering any evidence to disprove it.

§ 635. If a justification is pleaded, and thereupon the
plaintiff makes a new assignment, to which the defendant
pleads not guilty, if the plaintiff proves only one trespass, he
must also clearly show, that the trespass proved is a different
one from that mentioned in the plea; for if the circumstances
are alike, the Jury will be instructed to presume it to be the
same.?

§ 635 a. The rule of damages in this action has already
been discussed, in treating the subject of Damages;* where
we have seen that the declaration involves not only the prin-
cipal transaction, but all its attendant circumstances, and its
natural and injurious results; all of which are put in issue
by the plea of not guilty. Upon this principle it has been
held, in trespass guare clausum fregit, where the defendant’s
sheep trespassed on the plaintiff’s close, and commingled
with his own, that evidence of a deadly disease, communi-
cated by the defendant’s flock to the plaintiff’s, was admis-
sible, as showing part of the damages which the plaintiff
was entitled to recover. And the knowledge of the defend-
ant was held immaterial to be proved, unless to increase the
damages. And generally, where the plaintiff has been de-
prived of the use of his property for a time, by the act com-
plained of, the value of the use, during such period, is to be
taken into the estimation of damages ;° the return of the
property to the owner’s possession and his, acceptance of it,
being available to the wrongdoer only in mitigation of dam-

 

1 Taylor v. Cole, 3 T. R. 292, 296.

2 Pickering v. Rudd, 1 Stark. R. 56; 4 Campb. 219.

3 Darby v. Smith, 2 M. & Rob. 184.

4 See supra, §§ 254, 256, 266, 268.

5 Barnum v. Vandusen, 16 Conn. R. 200.

6 Warfield v. Walter, 11 G. & J. 80; Hammatt v. Russ, 4 Shepl. 171.
PART IV.] TRESPASS. 681

ages, but not in bar of the action.1 So, if the value of the
property has been lawfully applied to the owner’s use, this,
as has been seen in another place, may be shown to reduce
the damages.”

 

1 Hanmer v. Wilsey, 17 Wend. 91; [Coffin v. Field, 7 Cush. 360.]

2 See supra, §§ 272, 276. It is agreed that, where the property has gone
to the plaintiff’s use, by his consent, either express or implied, this will avail
to reduce his damages. But several of the cases seem to turn on the ques-
tion, whether the property was so applied by the wrongdoer himself, or by a
mere stranger. And upon this distinction it has been held, where property
was taken upon an illegal process against the owner, for which taking an ac-
tion of trespass was commenced against the creditor who directed it, and
afterwards a legal process was sued out, under which the same‘ property,
which had not gone back into the owner’s possession, was seized and sold for
his debt, that the defendant was not at liberty to prove this fact in mitigation
of damages, it being a mere act of his own. Hanmer v. Wilsey, 17 Wend.
91. The like point, upon the same distinction, was again decided in Otis v.
Jones, 21 Wend. 394. So, where one wrongfully took goods under a belief
of right so to do, and they were afterwards taken out of his hands by distress
for rent due from the owner to his Jandlord, it was held, in an action of tres-
pass brought by the owner against the tortfeazor, that the latter might show
this fact, in mitigation of damages, because of his belief of his right to take
the goods. Higgins v. Whitney, 24 Wend. 379. And, still later, in an action
against a sheriff for an unauthorized seizure of goods under a jieri facias, he
was permitted to show, in mitigation of damages, that the goods were after-
wards taken from his custody, and lawfully sold on a distress warrant issued
against the plaintiff in favor of a third person; the sale being independent
of any agency of the defendant. Sherry v. Schuyler, 2 Hill, (N. Y.) Rep.
204. :

Other Courts, however, have held, that wherever the property has been
applied to the plaintiff’s use, this may be shown in mitigation of damages.
See Irish v. Cloyes, 8 Verm. R. 30, 33.

But this rule will generally be found to have been applied only in cases of
illegal seizures or sales of goods by officers, who have subsequently either
regularly sold the goods, or applied the proceeds of the irregular sale, in sat-
isfaction of final process against the owner. Such were, in substance, the
cases of Farrar v. Barton, 5 Mass. 395; Prescott v. Wright, 6 Mass. 20;
Pierce v. Benjamin, 14 Pick. 356; Daggett v. Adams, 1 Greenl. 198; Board
v. Head, 3 Dana, 489, 494; Stewart v. Martin, 16 Verm. R. 397. Even
where the defendant was a mere trespasser, without pretence of title, he has
been permitted to show, in mitigation of damages, that the goods had been
duly taken out of his hands and sold by an officer, by virtue of a legal pre-
cept against the plaintiff. Squire v. Hollenbeck, 9 Pick. 551; [Kaley »v.
Shed, 10 Met. 317.]
682 LAW OF EVIDENCE. [PART Iv.

Perhaps the true principle will be found to be this: that, where the appro-
priation of the goods or their value to the plaintiff’s use was by his consent,
expressed or implied, it goes in reduction of the damages; it being in the
nature of a return and acceptance of the goods; and that such consent may
always be implied, where the goods have been legally seized and sold under
process against him. If the appropriation was made in any other manner,
his consent may be shown by any evidence of a subsequent ratification ; such
as claiming the benefit of it, if it were delivered in payment to his own cred-
itor, or the like.

In trespass de bonis asportatis, if the Jury find for the plaintiff, the goods
being still out of his possession, they must award him the value of the goods ;
they cannot award damages for the taking alone, on the ground that the goods
are still the property of the plaintiff. Woolley v. Carter, 2 Halst. 85. But
if the plaintiff has received the goods again, it is otherwise. Merrill v. How,
11 Shepl. 196.
PART LV.] TROVER. 683

TROVER.

§ 636. Tis action, the form of which is fictitious, is in
substance a remedy to recover the value of personal chattels,
wrongfully converted by another to his own use. To entitle
the plaintiff to recover, two points are essential to be proved:
(1.) property in the plaintiff} and a right of possession at
the time of the conversion; and (2.) a conversion of the
thing by the defendant to his own use. Whether the de-
fendant originally came to the possession of the thing by
right or by wrong, is not material. The plaintiff should also
be prepared to prove the value of the goods at the time and
place of the conversion ; though this is not essential to the
maintenance of the action. :

§ 637. (1.) The property in the plaintiff may be either
general and absolute, or only special; the latter of these
interests being sufficient for the purpose.?, And where the
plaintiff has a special property, he may maintain this action
against even the general owner, if he wrongfully deprives him
of the possession.? Special property, in a strict sense, may
be said to consist in the lawful custody of the goods, with a
right of detention against the general owner; but a lower

 

1 Per Ld. Mansfield, 1 T. R. 56. See, also, 2 Saund. 47 @ to 47 k, note
(1). [And the property must be in the plaintiff at the commencement of
the action. Clapp v. Glidden, 39 Maine, 448.]

2 Webb v. Fox, 7 T. R. 398, per Lawrence, J.

3 Roberts v. Wyatt, 2 Taunt. 268; Spoor v. Holland, 8 Wend. 445.

4 The nature of special property is thus discussed by Mr. Justice Story.
“ What is meant by a special property in a thing ? Does it mean a qualified
right or interest in the thing, a jus in re, or a right annexed to the thing ?
Or does it mean merely a lawful right of custody or possession of the thing,
which constitutes a sufficient title to maintain that possession against wrong-
doers by action or otherwise? If the latter be its true signification, it is
684 LAW OF EVIDENCE. [PART Iv.

degree of interest will sometimes suffice, against a stranger;
for a mere wrongdoer is not permitted to question the title of

 

little more than a dispute about terms; as all persons will now admit, that
every bailee, even under a naked bailment from the owner, and every right-
ful possessor by act or operation of law, has in this sense a special property
in the thing. But, this certainly is not the sense in which the phrase is or-
dinarily understood. When we speak of a person’s having property in a
thing, we mean that he has some fixed interest in it, (jus in re,) or some
fixed right attached to it, either equitable or legal; and when we speak of a
special property in a thing, we mean some special fixed interest or right
therein, distinct from, and subordinate to, the absolute property or interest
of the general owner. Thus, for example, if goods are pledged for a debt,
we say, that the pledgee has a special property therein; for he has a quali-
fied interest in the thing, coextensive with his debt, as owner pro tanto. So
we say, that artificers and workmen, who work on or repair a chattel, and
warehouse-men, and wharfingers, and factors, and carriers, have a special
property in the chattel confided to them for hire, for the particular purpose
of their vocation, because they have a lien thereon for the amount of the
hire due to them, and a rightful possession in virtue of that lien, even against
the general owner, which he cannot displace without discharging the lien.
So the sheriff, who has lawfully seized goods on an execution, may in this
sense be said, without, perhaps, straining the propriety of language, to have
a special property in the goods, although, more correctly speaking, the goods
should’be deemed to be in the custody of the law, and his possession a law-
ful possession, binding the property for the purposes of the execution against
the general owner, as well as against wrongdoers. But it seems a confusion
of all distinctions, to saygthat a naked bailee, such as a depositary, has a
special property, when he has no more than the lawful custody or possession
of the thing, without any vested interest therein, for which he can detain the
property, even for a moment, against the lawful owner. It might, with far
more propriety, be stated, that a gratuitous borrower has a special property
in the thing bailed to him, because, during the time of the bailment, he has a
right to the use of the thing, and seems thus clothed with a temporary own-
ership for the purposes of the loan. Yet this has sometimes been a matter
denied or doubted.

“Mr. Justice Blackstone has defined an absolute property to be, ‘ Where
a man has solely and exclusively the right, and also the occupation, of any
movable chattels, so that they cannot be transferred from him, or cease to be
his, without his own act or default ;’ and qualified, limited, or special prop-
erty to be such, ‘as is not in its nature permanent, but may sometimes sub-
sist, and at other times not subsist.’ And after illustrating this doctrine by
cases of qualified property in animals, fere nature, and in the elements of
fire, light, air, and water, he then proceeds: ‘ These kinds of qualification
in property depend upon the peculiar circumstances of the subject-matter,
PART IV.] TROVER. 685

a person in the actual possession and custody of the goods,
whose possession he has wrongfully invaded. The naked

 

which is not eapable of being under the absolute dominion of any proprietor.
But property may also be of a qualified or special nature, on account of the
peculiar circumstances of the owner, when the thing itself is very capable of
absolute ownership. As in case of bailment, or delivery of goods to another
person for a particular use ; as to a carrier to convey to London, to an inn-
keeper to secure in his inn, or the like. Here there is no absolute property
in either the bailor or bailee, the person delivering, or him to whom it is
delivered; for the bailor hath only the right, and not the immediate posses-
sion; the bailee hath the possession, and only a temporary right. But it is
a qualified property in them both, and each of them is entitled to an action,
in case the goods be damaged or taken away; the bailee, on account of his
immediate possession ; the bailor, because the possession of the bailee is, im-
mediately, his possession also. So also in case of goods pledged or pawned,
upon condition, either to repay money-or otherwise ; both the pledgor and
pledgee have a qualified, but neither of them an absolute, property in them ;
the pledgor’s property is conditional, and depends upon the performance of
the condition of repayment, &c.; and so, too, is that of the pledgee, which
depends upon its non-performance. The same may be said of goods distrained
for rent, or other cause of distress; which are in the nature of a pledge, and.
are not, at the first taking, the absolute property of either the distrainor, or
the party distrained upon ; but may be redeemed, or else forfeited, by the
subsequent conduct of the latter. But a servant, who hath the care of his
master’s goods or chattels, as a butler of plate, a shepherd of sheep, and the
like, hath not any property or possession, either absolute or qualified, but
only a mere charge or oversight.’ The cases here put by the learned Com-
mentator, of qualified property, are clearly cases where the bailee has an
interest or lien in rem. Mr. Justice Lawrence, on one occasion, said: ‘ Ab-
solute property is, where one, having the possession of chattels, has also an
exclusive right to enjoy them, and which can only be defeated by some act
of his own. Special property is where he who has the possession holds them
subject to the claims of other persons. There may be special property in
various instances. There may be special property without possession; or
there may be special property, arising simply out of a lawful possession, and
which ceases when the true owner appears. Such was the case of Armory
v. Delamirie.’

“ Now, with reference to the case in judgment, the language of the learned
Judge may be strictly correct; for it is by no means clear, that the bankrupt
had ‘not an absolute property in the chattels, good against all the world, until
his assignees asserted some title to it. The case cited, of Armory v. Dela-
mirie, was the case of goods coming to the party’s possession by finding,
where he might justly be said to be entitled to it, as well as possessed of it,
as absolute owner, against all the world, until the rightful owner appeared
and claimed it; and if it was never claimed, his title as finder remained

VOL. 11. 58
686 LAW OF EVIDENCE. [PART IV.

possession of goods with claim of right, is sufficient evidence
of title, against one who shows no better right... Hence the
sheriff, who has attached goods, may maintain this action
against one who takes them from his possession, or from that
of his bailee for mere custody?

 

absolute. The case of a naked depositary does not seem to have been here
presented to the mind of the learned Judge. Indeed, there is no small re-
finement and subtilty in suggesting, that a person, lawfully in possession of
a thing, has, at the same time, a special property therein against strangers,
and no property at all against the true owner. What sort of special property
is that which has no existence against the owner of the thing, and yet, at the
same time, has an existence against other persons? Can there be property,
and no property, at the same time? Ifthe language were, that, when a party
has a right of possession, that right cannot lawfully be violated by mere
wrongdoers; but, if violated, it may be redressed by an action of trespass or
trover, it would be intelligible. If the language were, that a person may
have a present temporary or defeasible property in a thing, subject to be de-
vested by the subsequent claim of the rightful owner under his paramount
title, (such as in the case of the finder of chattels,) or a temporary property
not special, which is to become absolute, or extinguished, by future events,
(such as the possession of an abstract of the title of the vendor by the vendee,
under a contract for a sale and conveyance of real estate,) there would be
little difficulty in comprehending the nature and quality of the right, as a
jusin re. It would be a present fixed right of property, subject to be de-
vested or destroyed by matters in futuro. In short, it would be a defeasible,
but vested interest in rem. But in the case of a naked deposit, by the very
theory of the contract, the bailor never means to part for a moment with his
right of property, either generally or specially, but solely with his present
possession of it; and the undertaking of the bailee is not to restore any right
of property, but the mere possession to the bailor. It is this change of pos-
session, which constitutes the known distinction between the custody of a
bailee, and that of a mere domestic servant; for, in the latter case, there is
no change whatever of possession of the goods, but the possession remains in
the master, and the servant has but a charge, or oversight ; whereas, in the
case of a bailee, there is a positive change of possession. The true descrip-
tion of the right conferred on a naked bailee, is that, which Mr. Justice
Blackstone, in the passage before cited, calls a ‘ possessory interest,’ or right
of possession, in contradistinction to a general or special property.” See
Story on Bailments, § 93 g, h, i.

1 Sutton v. Buck, 2 Taunt. 302; Armory v. Delamirie, 1 Str. 505; Bur-
ton v. Hughes, 2 Bing. 173; Giles v. Grover, 6 Bligh, 277; Story on Bail-
ments, § 93 d, e, f; Disieae v. Spear, 11 Wend. 54; Faulkner v. Brown,
13 Wend. 63.

? Wilbraham v. Snow, 2 Saund. 47; Story on Bailments, § 93 e, f;
PART IVv.] TROVER. 687

§ 638. Where the plaintiff claims title to goods under a
sale, and a question is made as to the time when the property
passed, it will be material for him to prove, that everything
that the seller had to do was already done, and that nothing
remained to be done on his own part, but to take away the
specific goods. They must have been weighed or measured,
and specifically designated and set apart by the vendor, sub-
ject to his control, the vendor remaining, at most, but a mere
bailee.! If they were sold at auction, the property passes to
the vendee, although the goods were not to be delivered to
him until the auctioneer had paid the duties to the govern-
ment.; or although they were to be kept by the auctioneer as

 

§ 132-135; Brownell v. Manchester, 1 Pick. 282; Badlam v. Tucker, Id.
389; [Lathrop v. Blake, 3 Foster, (N.H.) 46.] Whether the sheriff’s bailee
for safe-keeping can maintain trover, isa point upon which the decisions are
not uniform. See Story on Bailments, § 133; Ludden v. Leavitt, 9 Mass.
104; Poole v. Symonds, 1 New Hamp. R. 289; Odiorne v. Colley, 2 N.
Hamp. R. 66.

[The consignee of goods who is ready to pay freight on having the goods
delivered to him, may maintain trover against the carriers or their agents,
who, having no legal claim on the goods for anything besides the freight,
refuse to deliver them unless a further sum is first paid; the consignee in
such case is not bound to make any tender to those in possession of the
goods, and their refusal to deliver the goods is evidence of a conversion.
Adams v. Clark, 9 Cush. 215. The lessee of a horse, may, in trover, re-
cover of the owner damages for the loss of the use of the horse by the act
of the owner, during a portion of the time of the bailment. Hickok v.
Buck, 22 Vt. 149. Trover will lie against the bond jide purchaser of loads
of earth wrongfully taken from the plaintiff’s land and without any demand
and refusal, although the defendant was ignorant of the trespass when he

~ converted the earth to his own use. Riley v. Boston Water Power Co.
11 Cush. 11.

A father put certain property into the possession of his son to enable him
to earn a livelihood, without any stipulation as to the length of time that
the son should keep the property, and reserving the right to take it away
and sell it whenever he should be put to any expense about it. A portion
of the property, after it had been for some time in the possession and use of the’
son, was attached as property of the son, and it was held that the father ’
could maintain trover against the attaching officer. Morgan v. Ide, 8 Cush.
423. See also Bryant v. Clifford, 13 Met. 138.]

1 Tarling v. Baxter, 6 B. & C. 360; Bloxam v. Saunders, 4 B. & C. 948;
Simmons v. Swift, 5 B. & C. 857.
688 LAW OF EVIDENCE. [PART IV.

a warehouse-man for a stipulated time.’ If, before the terms
of sale are complied with, the vendor’s servant delivers them
to the vendee by mistake, no property passes.?_ Nor does any
property pass by a verbal contract of sale, which the Statute
of Frauds requires to be in writing? If a specific article, such
as a ship, for example, is to be built, and the price is to be
paid by instalments as the work advances, the payment of
the instalments, as they fall due, vests the property of the ship
in the vendee; but if the contract is general, without instal-
ments, it is otherwise. But though the property thus passes
by the contract of sale, in the manner above stated, yet by
rescinding the contract the property of the vendee is devested,
and the vendor is remitted to his former right If the sale
is fraudulent, or illegal, or if the goods were obtained by false
pretences, or were stolen and sold by the thief to an inno-
cent purchaser, no property passes.®

 

1 Hinde v. Whitehouse, 7 East, 558, 571; Philimore v. Barry, 1 Campb.
518; [Simmons v. Anderson, 7 Rich. (8. C.) 67.]

2 Bishop v. Shillito, 2 B. & Ald. 329, note (a), per Bayley, J. And see
Brandt v. Bowlby, 2 B. & Ad. 932.

3 Bloxsome v. Williams, 3 B. & C. 234.

4 Woods v. Russell, 5 B. & Ald. 942; Clarke v. Spence, 4 Ad. & El.
448; Goss v. Quinton, 3 M. & G. 825; Bishop v. Crawshay, 3 B. & C. 419;
Mucklow v Mangles, 1 Taunt. 318 ; [Angier v. Taunton, &c. Co. 1 Gray,
621.]

5 Pattison v. Robinson, 5 M. & 8. 105; Supra, § 615.

6 Wilkinson v. King, 2 Campb. 335; Noble v. Adams, 7 Taunt. 59;
Packer v. Gillies, 2 Campb. 336 n; Peer v. Humphrey, 2 Ad. & El. 495;
[Decker v. Matthews, 2 Kernan, (N. Y.) 313; Ladd v. Moore, 3, Sandf.
Sup. Ct. 589. A mortgagee having the right of immediate possession of the
mortgaged goods, was induced by the fraudulent representations of the mort-
gagor to permit the property to remain in the mortgagor’s possession for a
certain period. During this period, the mortgagor, with intent to defraud
the mortgagee, sent the goods to an auctioneer who sold them and delivered
the proceeds of the sale to the mortgagor; and it was held that the mort-
gagee could maintain trover against the auctioneer, although the latter

‘did not participate in the fraud of the mortgagor, and did not in fact
know of the existence of the mortgage. Coles v. Clark, 3 Cush. 399. See
also Flanders v. Colby, 8 Foster, (N. H.) 34; Moody v. Whitney, 84 Maine,
563; Cartland v. Morrison, 32 Maine, 190; Cobb v. Dows, 9 Barb. 230.
Trover will not lie against a bond fide purchaser, without notice, of a fixture
PART IV.] TROVER. 689

§ 639. Where the plaintiff claims title as the holder of a
bank-note, bill of exchange, promissory note, exchequer bill,
government bond made payable to the holder, or other ne-
gotiable security, whether payable to bearer, or to order, and
indorsed in blank; it is sufficient for him to show that he
took it bond fide and for a valuable consideration ; for this
vests the title in him, without regard to the title or want of
title in the person from whom he received it. It was for-
merly held that if the latter came to the possession by felony,
or fraud, or other mala fides, it was incumbent on the plaintiff
to show, that he had used due and reasonable caution in
taking it; but though gross negligence in the transferee may
still be shown, as evidence of fraud, though not equivalent
to it, ‘yet his title is now held to depend, not on the degree of
caution which he used, but on his good faith in the transac-
tion’ If the security was lost by the plaintiff, and has been
found and converted by the defendant, who has paid part of
the proceeds to the plaintiff, the acceptance of such part is no
waiver of the tort, but trover still lies for the security.

§ 640. There must also be shown in the plaintiff a right to
the present possession of the goods. If he has only a special
property, there must ordinarily, be evidence of actual posses-
sion;® but the general property has possession annexed to

 

*

wrongfully severed from the freehold. Cope v. Romeyne, 4 McLean, 384;
nor for fixtures which a tenant has left annexed to the freehold, with the leave
of the landlord, after he has quit the possession. Ruffey v. Henderson, 8
Eng. Law & Eq. 305.]

' 1 Wookey v. Poole, 4 B. & Ald. 1.

2 Gorgier v. Mieville, 3 B. & C. 45.

3 Story on Bills, §§ 415, 416; Story on Promissory Notes, 193-197, 382;
Bayley on Bills, pp. 130, 131, 524, 531, (5th edit.) ; Chitty & Hulme on
Bills, p. 254-257; Goodman v. Harvey, 4 Ad. & El. 870; Uther v. Rich, 10
Ad. & El. 784. [See ante, § 172.]

4 Burn v. Morris, 4 Tyrw. 485.

5 Coxe v. Harden, 4 East, 211; Hotchkiss v. MceVickar, 12 Johns. 407;
Sheldon v. Soper, 14 Johns. 352; Dennie v. Harris, 9 Pick. 364. A factor
to whom goods have been consigned, but which have not yet come to hand,
may maintain trover for them; and this is said to contradict, or at least to

58 *
690 LAW OF EVIDENCE. [PART Iv.

it by construction of law.! If, however, there is an interme-
diate right of possession in another person as lessee, the
general owner cannot maintain this action. Therefore, a
lessor of chattels cannot have an action of trover against
one who has taken them from the possession of his lessee, so
long as the right of the lessee remains in force? But if the
interest of the tenant or possessor is determined, whether by
forfeiture or otherwise, the general owner may sue. Thus,
if the tenant has unlawfully sold the machinery demised
with a mill;? or, if a stranger cuts down and removes a
tree, during a term;‘ the general owner may maintain this
action against the purchaser or stranger. Upon the same
general principle of right to the immediate possession, the
purchaser of goods not sold on credit, has no right to this
form of remedy, until he has paid or tendered the price ;°
even though he has the key of the apartment where the
goods are stored, if the vendor still retains the general con-
trol of the premises.6 So, if the purchaser of lands, being
permitted to occupy until default of payment, the title re-
maining in the vendor for his security, cuts down and sells

 

form an exception to the rule stated in the text. See Fowler v. Brown, 1 B.
& P. 47, per Eyre, C. J. But the possession of the carrier being the pos-
session of the factor, whose servant he is for this purpose, the case would
seem on this ground to be reconcilable with the rule. Bull. N. P. 36; Dut-
ton v. Solomonson, 3 B. & P. 584; Dawes v. Peck, 8 T. R. 330; Chitty on
Contr. p. 384; Story on Contr. § 509; [Clark v. Draper, 19 N. H. 419.]

1 Gordon v. Harper, 7 T. R. 12, per Grose, J.; 2 Saund. 47 a, note (1);
Ayer v. Bartlett, 9 Pick. 156 ; Foster v. Gorton, 5 Pick. 185.

2Tbid.; Smith v. Plomer, 15 East, 607; Wheeler v. Train, 8 Pick. 255;
Pain v. Whittaker, Ry. & M. 99; Fairbank v. Phelps, 22 Pick. 535; Supra,
§ 616. And see Farrant v. Thompson, 5 B. & A. 826. But an intervening
right by way of lien, such as that of a carrier, will not deprive the general
owner of this remedy, against a wrongdoer. Gordon v. Harper, 7 T. R. 12;
Nichols v. Bastard, 2 C. M. & R. 659; [Rugg v. Barnes, 2 Cush. 591; Har-
vey v. Epes, 12 Gratt. 153.]

3 Farrant v. Thompson, 5 B. & A. 826. [See also Ashmead v. Kellogg,
23 Conn. 70.] ,

4 Berry v. Heard, Cro. Car. 242; Palm. 327; 7 T. R. 13; Blaker v.
Anscombe, 1 New Rep. 25.

5 Bloxam v. Saunders, 4 B. & C. 941; Miles v. Gorton, 4 Tyrw. 295.

6 Milgate v. Kebble, 3 Man. & Gr. 100.
PART Iv.] TROVER. 69L

“

timber without leave from the vendor, the latter may have
trover against the purchaser! And if the bailee of goods for
a special purpose, transfers them to another in contravention
of that purpose, the remedy is the same.2 The bailee of
materials to be manufactured, may also have this action
“against a stranger, though the goods were taken by the
defendant from the possession of a third person, whom the
plaintiff had hired to perform the work.? So, a ship-owner
may maintain trover for the goods shipped, against the
sheriff who attaches them, without payment or tender of the
freight due.t '

§ 641. An executor or administrator has the property of
the goods of his testator or intestate vested in him before his
actual possession; and therefore may have trover or trespass
against one who has previously taken them. And though
he does not prove the will, or receive letters of administra-
tion, for a long time after the death of the testator or intes-
tate, yet the property will be adjudged to have been in him,
by relation, immediately upon the decease.’ If he relies on
e

 

1 Moores v. Wait, 3 Wend. 104.

2 Wilkinson v. King, 2 Campb. 335; Loeschman v. Machin, 2 Stark. R.
311. But if a consignee of goods for sale, at a price not less than a certain
sum, sells them for a less sum, it is not a conversion, but the remedy is by a
special action on the case. Serjeant v. Blunt, 16 Johns. 74; [Lovejoy v.
Jones, 10 Foster, (N. H.) 164. A consignee having authority to sell Prop” |
erty for the owner, sold it as the property of a person other than the owner,
and such sale was held a conversion. Covell v. Hill, 2 Selden, (N. Y.) 374.
A bailee in possession of property for a term not expired, attempted, or
offered to terminate the bailment, and it was held that this gave the bailor a
right to resume possession of the property forthwith, and that he could
maintain trover therefor against the attaching officer, although he (the bailor)
did not in fact know of the abandonment by the bailee. Hardy v. Reed,
6 Cush, 252.]

3 Eaton v. Lynde, 15 Mass. 242; [Bryant v. Clifford, 13 Met. 138.]

4 De Wolf v. Dearborn, 4 Pick. 466. [A person to whom a letter sent by
mail is addressed, may maintain an action of trover in a state court, against
the postmaster who unlawfully refuses to deliver it. Teal v. Felton, 12
How. U. 8. 284.]

5 1 Com. Dig. 341, tit. Administration, B. 10; Id. 311, tit. Action upon

1
692 LAW OF EVIDENCE. [PART Iv.

his constructive possession, and a conversion after the death
of the testator or intestate, he must produce and prove at
the trial his letters testamentary, or of administration

§ 642. (2.) The plaintiff must, in the next place, show,
that the defendant has converted the goods to his own use.
A conversion, in the sense of the law of trover, consists either
in the appropriation of the thing to the party’s own use and
beneficial enjoyment, or in its destruction, or in exercising
dominion over it, in exclusion or defiance of the plaintiff’s
right, or in withholding the possession from the plaintiff,
under a claim of title, inconsistent with his own2 It may,

 

the Case upon Trover, B.; Rex v. Horsley, 8 East, 410, per Ld. Ellen-
borough; Doe v. Porter, 3 T. R. 13,16; Long v. Hebb, Sty. 341; Lock-
smith v. Creswell, 2 Roll. Abr. 399, pl. 1; Anon. Comb. 451, per Holt, C.J.;
2 Selw. N. P. 777, (10th edit.) ; Patten'v. Patten, 1 Alcock & Napier, R.
493, 504 ; [Wilson v. Shearer, 9 Met. 504.] In Woolley v. Clark, 5 B.&
Ald. 744, it was said, that, as to the administrator, his title being derived
wholly from the Ecclesiastical Court, no right vested in him until the grant
of letters of administration; but the resolution of this point was not essen-
tial to the decision in that case, as the defendant, who sold the goods as ad-
ministrator, sold them after notice of the existence of the will, by which the
plaintiff was appointed executrix.

1 Robinson v. M’Donald, 2 Kelly, R. 119. [Trover lies against an execu-
tor for a conversion by the testator in his lifetime. Locke v. Garrett, 16
Ala. 698; Brammett v. Golden, 9 Gill, 95.]

2 Fouldes v. Willoughby, 8 M. & W. 546-551; Keyworth v. Hill, 3 B.
& Ald. 685; Bristol v, Burt, 7 Johns. 254; Murray v. Burling, 10 Johns.
172; Hare v. Pearson, 4 Ired. 76; Page v. Hatchett, 10 Jur. 634; Harris
v. Saunders, 2 Strobh. Eq. R.370; Clark v. Whitaker, 19 Conn. 319; Heald
v. Carey, 9 Eng. Law & Eq. R. 429. But the mere cutting down of trees
without taking them away, is not a conversion. Mires v. Solebay, 2 Mod.
245; [Bray v. Bates, 9 Met. 237; Salisbury v. Gourgas, 10 Ib. 462; Fernald
v. Chase, 37 Maine, 289; Fuller v. Tabor, 89 Maine, 519. Proof that the
defendant did some positive wrongful act is necessary to support an action
of trover. Bromley v. Coxwell, 2 Bos. & Pul. 438; Ross v. Johnson, 5
Burr. 2825; Severin v. Keppell, 4 Esp. R. 156, A sale of personal prop-
erty by a mortgagee before foreclosure, is a conversion for which the mort-
gagor may maintain an action. Spaulding v. Barnes, 4 Gray, 330. To
constitute a joint ‘conversion of personal property, the acts of the several
defendants need not be contemporaneous if their acts and purposes all tend
to the same result, Cram v. Thissell, 35 Maine, 86.]
PART Iv.] TROVER. 698

therefore, be either direct, or constructive; and of course is
proved either directly, or by inference. Every unlawful
taking, with intent to apply the goods to the use of the taker,
or of some other person than the owner, or having the effect
of destroying or altering their nature, is a conversion But
if it does not interfere with the owner’s dominion over the
property, nor alter its condition, it is not. Upon these prin-
ciples, it has been held, that if a ferryman wrongfully put
the horses of a passenger out of the boat, without further
intent concerning them, it may be a trespass, but it is nota
conversion ; but if he makes any further disposition of them,
inconsistent with the owner’s rights, it is a conversion.2, So
the taking possession of the bankrupt’s goods, by his as-
signees, is a conversion, as against him, for which he may
maintain trover, to try the validity of the commission, with-
out making a demand. So, using a thing,.without license
of the owner, is a conversion; as is also the misuse or deten-
tion of a thing, by the finder, or other bailee.t So, the adul-

 

1 Bull. N. P. 44; 2 Saund. 47 g, by Williams; Prescott v. Wright, 6 Mass.
20; Pierce v. Benjamin, 14 Pick. 356 ; Thurston v. Blanchard, 22 Pick. 18.
But if a tortious taking has been subsequently assented to by the owner, the
remedy in trover is gone. Hewes v. Parkman, 20 Pick. 90; Rotch v. Hawes,
12 Pick. 136; Clarke v. Clarke, 6 Esp. 61; Brewer v. Sparrow, 7 B. & C.
310. [The taking of hire from the defendant in an action of trover for a
misuser of the bailment for hire, during the pendency of the suit, is not a
waiver of the conversion. Harvey v. Epes, 12 Gratt. 153.] Taking the
plaintiff’s goods by mistake, supposing them to be defendant’s own, and
a subsequent promise to restore them, the performance of which was ne-
glected, have been held sufficient evidence of a conversion. Durrell »v.
Mosher, 8 Johns. 445. See further, Harrington v. Payne, 15 Johns. 481.

2 Fouldes v. Willoughby, 8 M. & W. 540. [If the bailee of property
during the term for which it was hired uses it in a different manner or for a
different purpose from that intended in the bailment, it is not a conversion
unless the property is thereby destroyed, or the act shows an intent to con-
vert the property. Harvey v. Epes, 12 Gratt. 153.]

3 Somersett v. Jarvis, 3 Brod. & Bing. 2.

4 Mulgrave v. Ogden, Cro. El. 219; Ld. Peter v. Heneage, 12 Mod. 519;
Wheelock v. Wheelwright, 5 Mass. 104; Story on Bailm. §§ 188, 2338, 241,
269, 396; Portland Bank ». Stubbs, 6 Mass. 422, 427; Ripley v. Dolbier, 6
Shepl. 882; [Woodman v. Hubbard, 5 Foster, (N. H.) 67.]
694 LAW: OF EVIDENCE. [PART IV.

teration of wine or other liquor, by putting water into it, is
a conversion of the whole quantity; but the taking away
of part is not so, if the residue remains in the same state as
before, and is not withheld from the owner And though
a factor, intrusted with goods for sale, may, in many cases
lawfully deliver them over to another for the same purpose ;
yet if a bailee of goods deliver them over to another, in
violation of the orders of the bailor, it is a conversion? A
mis-delivery of goods, also, by a wharfinger, carrier, or other
bailee, is a conversion ;* but the accidental loss of them, by
the mere omission of the carrier, is not. A wrongful sale of
another’s goods, is also a conversion of them ;° and though
the custody of the goods remains unaltered, yet the delivery
of the documentary evidence of title, and the receipt of the

1 Richardson v.*Atkinson, 1 Stra. 586; Philpott v. Kelley, 3 Ad. & El.
306 ; Dench v. Walker, 14 Mass. 500; Young v. Mason, 8 Pick. 551. The
mere fact of a bailee’s bottling a cask of wine, is not evidence of a conver-
sion. Ibid. [The fraudulent mixing, by one person of his own goods with
those of another, so that the property of each can be no longer distinguished,
is a conversion, and the injured party may maintain trover for the whole
against a bond jide purchaser. Hesseltine v. Stockwell, 30 Maine, 237;
Bryant v. Ware, Ib. 295.]

2 Bromley v. Coxwell, 2 B. & P. 488; Seyds v. Hay, 4 T. R. 260.

3 Devereux v. Barclay, 2 B. & Ald. 702; Youl v. Harbottle, 1 Peake, R.
49; Stevenson v. Hart, 4 Bing. 483; Story on Bailm. §§ 450, 451, 545 b.
[Omitting seasonably to deliver goods will not sustain trover against a car-
rier without a demand. Robinson v. Austin, 2 Gray, 564; Bowlin v. Nye,
10 Cush. 416. See ante, §§ 218, 219.]

4 Ross v. Johnson, 5 Burr. 2825; Kirkman v. Hargreaves, 1 Selw. N. P.
425; Dwight v. Brewster, 1 Pick. 50, 53; Owen v. Lewyn, 1 Ventr. 223;
Anon. 2 Salk. 655; Hawkins v. Hoffman, 6 Hill, (N. Y.) Rep. 586. There
are two cases seeming to the contrary of this; but in one of them, (Green-
field Bank v. Leavitt, 17 Pick. 1,) this point was not raised, but the defend-
ant’s liability for a loss was assumed, the case turning wholly on the question
of damages; and in the other, (La Place v. Aupoix, 1 Johns. Cas. 406,) the
case sufficiently shows, that there was an actual conversion.

5 Edwards v. Hooper, 11 M. & W. 363; Featherstonhaugh v. Johnston,
8 Taunt. 237; Lowell v. Martin, 4 Taunt. 799; Alsager v. Close, 10 M. &
W. 576; Robinson v. Rolls, 1 M. & Rob. 239; Everett v. Coffin, 6 Wend.
603; Kyle v. Gray, 11 Ala. R. 283, But if the sale was by defendant’s
agent without his knowledge, quere; and see Machell v. Ellis, 1 C. & K.
682.
PART IV.] TROVER. 695

value, completes the act of conversion ;! but a mere purchase
of goods, in good faith, from one who had no right to sell
them, is not a conversion of them, against the lawful owner,
until his title has been made known and resisted? Nor is
the averment of a conversion supported by evidence of non-
feasance alone ; as if a factor, employed to sell goods, neg-
lects to sell them, or sells them without taking the requisite
security?

§ 643, On the other hand, though there has been an actual
use or disposition of the goods of another, yet if it was done
under the pressure of ‘moral necessity, a license will some-
times be presumed, and it will not be a conversion. Such
is the case, where a shipmaster throws goods into the sea, to
save the ship from sinking. So itis, if the thing was taken
to do a work of charity, or to do a kindness to the owner, and
without any intention of injury to it, or of converting it to his
own use.®

§ 644. Where the circumstances do not, of themselves,
amount to an actual conversion, it will be incumbent on the
plaintiff to. give evidence of a demand and refusal, at any day
prior to the commencement of the action, the time not being
material, and also to show that the defendant, at the time of

 

1 Jackson v. Anderson, 4 Taunt. 24.

2 McCombie v. Davies, 6 East, 538; Baldwin v. Cole, 6 Mod. 212.

3 Bromley v. Coxwell, 2B. & P. 438; Cairns v. Bleecker, 12 Johns. 300;
Jenner v. Joliffe, 6 Johns. 9. [Nor does the forcibly interposing obstacles
to prevent the owner from obtaining possession of the property, by one who
has not the possession thereof, actual or constructive, amount to a conver-
sion. Boobier v. Boobier, 39 Maine, 406.]

4 Bird v. Astock, 2 Bulstr. 280. See also Clarke v. Clarke, 6 Esp.
R. 81.

5 Drake v. Shorter, 4 Esp. R. 195. And see Sparks v. Purdy, 11 Mis.
219. [A surveyor of highways lawfully removed wood which was placed
within the limits of the highway, and gave notice to the owner of the wood
where he had put it, and that he might have it on paying for the removal of
it; and this was held not to be a conversion of it, in an action by the owner
against the surveyor. Plummer v. Brown, 8 Met. 578.]
696 LAW OF EVIDENCE. [PART IV.

the demand, had it in his power to give up the goods. But
the demand and refusal are only evidence of a prior conver-
sion, not in itself conclusive, but liableto be explained and
rebutted by evidence to the contrary The refusal, moreover,
must be absolute, amounting to a denial of the plaintifi’s
title to the possession ; and not a mere excuse or apology for
not delivering the goods at present;? but it need not be
expressed ; it may be inferred from non-compliance with a
proper demand. If, however, the refusal is qualified by a
condition which the party had no right to impose, it is evi-
dence of a conversion.> And so it is, if itis grounded on a

 

1 Bull. N. P. 44; Vincent v. Cornell, 13 Pick. 294; Nixon v. Jenkins,
2H. Bl. 135; Edwards v. Hooper, 11 M. & W. 366, per Parke, B.; Smith
v. Young, 1 Campb. 441. See Kinder v. Shaw, 2 Mass. 398; Chamberlain
v. Shaw, 18 Pick. 278; Leonard v. Tidd, 2 Met. 6; Jones v. Fort, 9 B. & C.
764; Anon. 2 Salk. 655; Kelsey v. Griswold, 6 Barb. 8. C. R. 436. [A de-
mand for goods alleged to have been converted, is not of itself a waiver of a
previous demand for the same goods, with which the wrongdoer refused to
comply, but it may go to the Jury as evidence of a waiver of the previous
demand. Winterbottom v. Morehouse, 4 Gray, 332.]

2 2 Saund. 47 e, by Williams; Wilton v. Girdlestone, 5 B. & Ald. 847, per
Cur.; Thompson v. Rose, 16 Conn. 71. Ordinarily the Jury are instructed
to find a conversion, upon evidence of a demand and refusal; but it will not
be inferred by the Court as a deduction of law. Mires v. Solebay, 2 Mod.
244; 10 Co. 56,57; 2 Roll. Abr. 693; Jacoby v. Laussat, 6 S. & R. 300;
[Folsom v. Manchester, 11 Cush. 334, 337; Magee v. Scott, 9 Ib. 148; Platt
v. Tuttle, 23 Conn. 233.] A cow, going at large in the highway, without a
keeper, joined a drove of cattle without the knowledge of the driver, and
was driven with them to a distant town and there depastured with the others,
during the summer. After the driver’s return, the owner of the cow called
on him to make inquiries, and demanded his cow; and on the return of the
drove in the autumn, the driver delivered the cow to the owner, who received
her. In an action of trover against the driver, it was held, that his omission
to deliver the cow on demand, was not proof of a conversion. Wellington v.
Wentworth, 8 Met. 548.

3 Severin v. Keppell, 4 Esp. R.156. Andsee Addison v. Round, 7 C. & P.
285; Philpott v. Kelley, 3 Ad. & El. 106 ; Pattison v. Robinson, 5 M. & S.
105; Caunce v. Spanton, 7 M. & G. 903.

4 Watkins v. Woolley, 1 Gow, R. 69; Golightly v. Ryn, Lofft, R. 88; Da-
vies v. Nicholas, 7 C. & P. 339. A demand in writing, left.at the defend-
ant’s house, is sufficient. Ibid.; Logan v. Houlditch, 1 Esp. 22; [Wilde v.
Waters, 32 Eng. Law & Eq. 422.]

5 Davies v. Vernon, 6 Ad. & El. 448, N.S.
PART Iv] TROVER. 697

claim of right by a third party. If the demand was made
by an agent, the plaintiff must also prove his authority to
make it; otherwise the refusal will be no evidence of a con-
version.2 Andif the demand is made upon a bailee of goods,
intrusted to him to keep on the joint account of several
owners, a demand by one alone, without the authority of
the others, is not sufficient.2 So, also, if goods are bailed to
two, a demand on one alone is not sufficient to charge the
other in trover, though it may suffice to charge him in an
action ex contractus
an :

§ 645. Even an absolute refusal is not always evidence of
a conversion. Thus, where the plaintiff’s goods were attached
in the hands of his bailee, who on that account refused to
deliver them, it was held no conversion® So it is where
the possessor of goods refuses to deliver them up, until some
ownership is shown in the claimant;® or until some other
condition, lawfully imposed by him, is complied with;7 as
where a servant, having the custody of goods, apparently
his master’s, refuses to deliver them without an_ order
from his master. So, if the bailee of goods asks time to
return them to the person from whom he received them,
that the owner may claim them from the latter rather than

 

i Caunce v. Spanton, 7 M. & G. 903; Zachary v. Pace, 4 Eng. 212.

2 Gunton v. Nurse, 2 Brod. & Bing. 447; [Robertson v. Crane, 27 Miss. 362.]

3 May v. Harvey, 13 East, 197. [Where goods, intrusted to a bailee, come
into the hands of a third person, a demand on such person by the bailee,
though not specially authorized thereto by the owner, and a refusal, is evi-
dence of a conversion. Bradley v. Spofford, 8 Foster, (N. H.) 444.]

4 Nicoll v. Glennie, 1 M. & S. 588; White v. Demary, 2 N. Hamp. 546;
Griswold v. Plumb, 13 Mass. 298; Ante, Vol. 1, §§ 112, 174; Mitchell v.
Williams, 4 Hill, (N. Y.) Rep. 13. 7

5 Verral v. Robinson, 2 C. M. & R. 495.

6 Solomons v. Dawes, 1 Esp. 82, per Ld. Kenyon; Green v. Dunn, 8
Campb. 215, n.; Zachary v. Pace, 4 Eng. 212; Carr v. Gale, Daveis, R. 333.
[The refusal to deliver must be put distinctly on this ground, otherwise it
will be evidence of a conversion. Ingalls v. Balkley, 15 Ill. 224.]

7.Davies v. Vernon, 6 Ad. & El. 443, N.S.

8 Alexander v. Southey, 5 B. & Ald. 247; Cole v. Wright, 4 Taunt. 198;
Shottwell v. Few, 7 Johns. 302. But see Judah v. Kemp, 2 Johns. Cas. 411.

VOL. II. 59
698 LAW OF EVIDENCE. [PART Iv.

from himself;! or if the owner has coupled his demand
with a claim that the goods shall be returned in a certain
plight, in the way of repairs, which the other party denies his
liability to make ;? this is not evidence of a conversion. So
where the principal refers the claimant to his agent, in whose
hands the goods actually are at the time;* and when a gen-
eral agent refuses to deliver the goods, the refusal not having
been directed by his principal.*. But where the refusal is
within the scope of the agent’s authority, it is otherwise.
Thus a refusal by a pawnbroker’s servant has been held evi-
dence of a conversion by his master. If, however, the ser-
vant actually disposes of the property, or withholds it, though
for his master’s use, as if he sells it, or tortiously takes it, or,
it being a negotiable bill of exchange delivered to him by an
agent for discount, he passes it to the agent’s credit in his
master’s books, and afterwards refuses to restore it to the
principal, it is a conversion by the servant.’ So, if the de-
mand is qualified by the claimant’s requiring that the goods
be restored in their original plight, a general refusal is not
evidence of a conversion.’

§ 646. If the parties are tenants in common of the chattel
which is the subject of this action, it will not be sufficient
for the plaintiff to prove that the defendant has taken the
chattel into his exclusive custody, and withholds the pos-
session from the plaintiff; for this either party may lawfully
do, each being equally entitled to the possession and use.®
And for the like reason, this action will not lie against one

 

1 Dowd v. Wadsworth, 2 Dev. 130.

2 Rushworth v. Taylor, 3 Ad. & El. 699, N.S.

3 Canot v. Hughes, 2 Bing. N. C. 448.

4 Pothonier v. Dawson, Holt, Cas. 383.

5 Jones v. Hart, 2 Salk. 441. And see Catterall v. Kenyon, 6 Jur. 507.

6 Cranch v. White, 1 Bing. N. C.414; Perkins v. Smith, 1 Wils. 328;
Stephens v. Elwall, 4 M. & 8. 260.

7 Rushworth v. Taylor, 6 Jur. 945; 3 Ad. & El. N.S. 699, S. C.

8 Barnardiston v. Chapman, cited 4 East, 120; Holliday v. Camsell, 1 T.
_ R. 658; Daniels v. Daniels, 7 Mass. 137, per Parsons, C. J.; [Bryant v.
Clifford, 18 Met. 138.]
PART IV.] TROVER. 699

part owner who has changed the form of the chattel, by con-
verting it to its ultimately intended and profitable use.’ But
the plaintiff, in such cases, must prove that the act of the
defendant was tortious, having the effect, so far as the plain-
tiff is concerned, of a total destruction of the property

 

1 Fennings v. Ld. Greenfield, 1 Taunt. 241.

21°Taunt. 249; Co. Litt. 200 a,b; Bull. N. P. 34, 85; 2 Saund. 47, A,
by Williams; Guyther v. Pettijohn, 6 Ired. 888; Weld v. Oliver, 21 Pick.
559. Whether the absolute sale of the whole of the entire chattel by one of
several owners in common, is of itself sufficient evidence of a conversion, to
make him liable in trover at the suit of his co-tenant, is a point upon which
there is some difference of opinion. The rule of the Common Law, that
trespass lies, where one party destroys the thing owned in common, is not
controverted. And it is generally conceded, that the party is equally liable
in trover for an actual conversion of the property to his own use, at least,
where the act of appropriation is such, as finally, by its nature, to preclude
the other party from any future enjoyment of it. Such is the case where
it is consumed in the use. And upon the same principle, where the sale
is one of a series of acts, whether by the vendor or vendee, which result
in putting the property forever out of the reach of the other party, it is a
conversion. Such was the case of Barnardiston v. Chapman, 4 East, 121,
where the defendant forcibly took the ship, owned in common, from the
plaintiff’s possession, changed her name, and sold her to a stranger, in whose
possession she was lost in a storm at sea. Here the Court resolved, that the
taking from the plaintiff’s possession was not a conversion; but left it to the
Jury to find, from the circumstances, that the ship was destroyed by the de-
fendant’s means; which they did, and it was held well. Buta sale alone
was deemed insufficient to establish a conversion, by the opinion of the whole
Court, in Heath v: Hubbard, 4 East, 110, 128, though the case itself was de-
cided on the ground, that in the instance before them there was not a legal
sale. Such also was the opinion of Best, J.,in Barton v. Williams, 5 B. &
Ald. 395 ; to which Holroyd, J., inclined; though Bayley, J., was of a dif.
ferent opinion, and Abbott, C. J., was inclined to think with him, that the
sale in that case, which was of India warrants, was aconversion. But after-
wards, in the same case, upon a writ of error in the Exchequer Chamber, 1
M’Cl. & Y. 406, 415, 416, the Court observed, that there was * great weight
in the argument,” that the original plaintiffs being tenants in common with
the defendants, could not maintain trover in a Court of law on the ground
of asale; but they did not decide the cause on that point, being of opinion
that the tenancy in common had been previously severed by the parties.
In this country, in a case where two being tenants in common of a quantity
of wool, one of them, having the possession, sold a part of it, and retained
the residue, claiming the whole as his own, and refusing to deliver up any
700 LAW OF EVIDENCE. [PART IV.

§ 647. If troveris brought by husband and wife, for goods
which were the sole property of the feme, and were taken
before the marriage, proof of a conversion before or after the
marriage will support the action; but if the husband sues

 

part to the other, this was held not such a conversion of the property as to
sustain an action of trover. Tubbs ». Richardson, 6 Verm. R. 442. See
also Selden v. Hickock, 2 Caines, R. 166. The same doctrine was held in
Oviatt v. Sage, 7 Conn. 95, where one tenant in common of a quantity of
cheese had sold the whole to a stranger. That there must either be “a de-
struction of the chattel, or something that is equivalent to it,” was the opinion
of Chambre, J., in Fennings v. Ld. Greenville, 1 Taunt. 249. And accord-
ingly in this case, it was resolved, that the conversion of the chattel into its
ultimately destined and profitable material, as, of a whale into oil, was no
severance of the tenancy in common. On the same principle, namely, that
while the thing substantially exists within the reach of the party, the tenancy
in common remains unchanged, it has been repeatedly held, that a sale of
the entire chattel by the sheriff, on an execution against one of the owners,
does not sever the tenancy, or devest the property of the others. St. John v.
Standring, 2 Johns. 468; Mersereau v. Norton, 15 Johns. 179. But a dispo-
sition of a perishable article by one joint owner, which prevents the other
from recovering the possession, is deemed equivalent to its destruction. Lu-
cas v. Wasson, 3 Dev. Rep. 398 ; confirmed in Cole v. Terry, 2 Dev. & Bat.
252,254. See also Farrar v. Beswick, 1 M. & W. 688; Mayhew v. Herrick,
18 Law J. 179, C.P.

But there are cases, on the other hand, in which ithas been said that a
sale alone by one tenant in common, is sufficient to charge him in trover,
for a conversion of the entire chattel. The earliest and leading case to this
effect, is that of Wilson ef al. v. Reed, 3 Johns. 175; in which it appeared
that the plaintiff and one Gibbs were joint owners of a hogshead of rum and
a pair of scale beams, which the sheriff seized and sold in toto to the defendant
by virtue of an execution against Gibbs. | The defendant sold the rum at re-
tail to his customers; and in an action of trover brought against him for the
goods by the other two owners, the Judge at Nisi Prius instructed the Jury,
that the retailing of the rum by the defendant was in law a destruction,
so as to enable the plaintiffs to maintain the action to this extent; and his
instructions were held correct. The learned Judge, who delivered the opin-
ion of the Court in bank, placed it, as to this point, on the general ground,
that a sale was a conversion of the property. But as in this case the prop-
erty had actually been consumed by the vendee, beyond the power of re-
covery, it was to all intents an actual conversion, and the general remark
was wholly uncalled for by the case in judgment. The same doctrine, how-
ever, was recognized in Hyde v. Stone, 9 Cowen, R. 230. This was an
action of trover for certain articles of household furniture, farming utensils,
and other personal property, of which the plaintiff was tenant in common
PART Iv.] TROVER. 701

alone, he must prove a conversion after the marriage If the
action is against the husband and wife, the plaintiff must

 

with his step-father, the defendant. It was admitted by the defendant, that
some of these articles had been sold by him at different times since his mar-
riage, during a period of six or seven years; and that others had been
destroyed, and others nearly worn out; of all which it appeared that he had
exhibited an account, estimating the value of the several articles, and charg-
ing the plaintiff for the value of his board, &c., leaving a balance due to the
plaintiff, for which he admitted himself liable, and promised to pay. Here-
upon the Judge instructed the Jury, that the plaintiff was entitled to recover
the value of his share of the goods; and these instructions were held correct.
Here, also, it is manifest, that the articles which had been sold were utterly '
and forever gone beyond the reach of the plaintiff, by means of the wrongful’
act of the defendant; and that as to these, as well as those destroyed, the
proof of actual conversion was complete. The remark, therefore, of the
learned Judge, who delivered the opinion of the Court, that, for a sale,. tro-
ver will lie by one tenant in common against another, referring to the case of
Wilson v. Reed, was not a for by the case before him, and may be re-
garded as an obiter dictum.) A new trial ned been granted upon other
grounds, the Jury were again instructed, that the plaintiff was entitled to
recover the value of his two thirds of all the property sold, lost, or destroyed.
But it is observable that the Court, in their final judgment, (7 Wend. 356-
358), regarded the property as wholly lost to the plaintiff by the fault of the
defendant; the only proposition laid down as the basis of their judgment
being the settled doctrine, that trover will lie by one tenant in common,
against another, for the logs or destruction'of the chattel while in his possés-*
sion. Of a similar character was the case of Mumford v. McKay, 8 Wend.
442, which was a sale of wheat in the grain; and of Farr v. Smith, 9 Wend.
888, which was a sale of wheat in the sheaf; in both of which cases the con-
version was actual; though in both also, and apparently without much consid-
eration, a sale seems to have been taken as in itself, and in all circumstances,
a conversion. But the point was subsequently brought directly before the
Supreme Court of the same State, in White v. Osborne, 21 Wend. 72, which
was the sale of an entire sloop plying on Lake Charfiplain ; which was held a
conversion. ‘The decision of the Court in this case was placed partly on the
ground of the dicta above quoted, and partly on the decision in Wilson v.
Reed, Mumford v. McKay, and Hyde »v. Stone, which have just been con-,
sidered. Subsequently it has been held in New York, that if the sheriff sells
the entire property in goods owned by two on an execution’ against one of
them only, it is an abuse of his legal authority, which renders him liable as :
a trespasser ab initio. Waddell v. Cook, Hill, (N. Y.)’Rep. 47. See also
Melville v. Brown, 15 Mass. 82, which, though briefly reported, was in fact
very elaborately argued and well considered. But this point stands entirely

1 2 Saund. 47 g, by Williams.
59 *
702 ; LAW OF EVIDENCE. [paRT Iv.

aver and prove either a conversion by the wife alone, before
the marriage, or a subsequent conversion by the joint act of
both; and it seems that, in the latter case, the evidence ought
to show some act of conversion other than that which merely
goes to the acquisition or detention of the property to their
use; for if the goods remain in specie in their hands, it is a
conversion only by the husband.t

§ 648. The perence of this action in the United States,
when it does not consist of matters of law, is almost univer-
sally made under the general issue of not guilty; a special
plea in trover being as seldom seen here, as it was in Eng-
land under the old rules of practice. And though in the
latter country this plea is now held, and perhaps wisely, to
put in issue only the fact of conversion, and not its char-
acter, as rightly or otherwise, nor any other matter of in-
ducement in the declaration, such as the title of the plaintiff,
nor any matter of title or claim in the defendant, or of sub-
sequent satisfaction or discharge of the action; yet in this
country, as formerly in England, this plea still puts the whole
declaration in issue? Under it, therefore, the defendant may
prove, by any competent evidence, that the title to the goods
was in himself, either absolutely, as general owner, or as
joint owner with the plaintiff, or specially, as bailee, or by
way of lien;* or that he took the goods for tolls, or for rent

 

clear of the question, whether one tenant in common may have trover for a
sale only by the other. See further, Lowe v. Miller, 3 Gratt. 205; Hurd »,
Darling, 14 Vt. 214; Weld v. Oliver, 21 Pick. 559; Rains v. McMarry, 4
Humph. 356. [See also Wheeler v. Wheeler, 33 Maine, 347; White v. Mor-
ton, 22 Vt. 15; Perminter v. Kelly, 18 Ala. 716.]

12 Saund. 47 A, 7, by Williams; Draper v. Fulkes, Yelv. 165, and note
(1), by Metcalf; Keyworth v. Hill, 3 B. & Ald. 685.

22 Selw. N. P. 1068, (2d Am. edit.); 1 Chitty, Pl. 436, (5th Am. edit.) ;
Bull. N. P. 48.

3 Skinner v. Upshaw, 2 Ld. Raym. 752; Bull. N. P.45. But to rebut the
evidence of a demand and refusal, he must show that he mentioned his lien
at the time of refusal. Boardman ». Sill, 1 Campb. 410, . See further,
Laclough v, Towle, 3 Esp. 114, and the cases of lien collected in Roscoe on
Evid. 408-412, (1st Am. edit.) 517-524, (6th Lond. edit.)
PART IV.] ; TROVER. 703

in arrear;! or he may disprove the plaintiff's title by show-
ing a paramount title in a stranger, or otherwise;? or he
may prove facts showing a license ;? or, a subsequent ratifi-
cation of the taking;‘ or, that the plaintiff has discharged
other joint parties with the defendant, in the wrongful act
complained of.6 It has been’ said, that a release is the only
special plea in trover;® but the statute of limitations, also,
is usually pleaded specially ;7 and indeed there seems to be
no reason why the same principle should not be admitted
here, which prevails in other actions, namely, that the de-
fendant may plead specially anything, which, admitting
that the plaintiff had once a cause of action, goes to dis-
charge it.

§ 649. The measure of damages in this action has already

 

1 Wallace v. King, 1 H. Bl. 13; Kline v. Husted, 3 Caines, R. 275; Ship-
wick v. Blanchard, 6 T. R. 298.

2 Dawes cv. Peck, 8 &. R. 880; Schermerhorn v. Van Volkenburg, 11
Johns. 529; Kennedy v. Strong, 14 Johns. 128; Rotan v. Fletcher, 15 Johns.
207.

3 Clarke v. Clarke, 6 Esp. R. 61; Bird v. Astock, 2 Bulstr. 280.

4 Hewes v. Parkman, 20 Pick. 90; [ Ante, § 642; Harvey v. Epes, 12
Gratt. 153 ; Firemen’s Ins. Co. v. Cochran, 27 Ala. 228.]

5 Dufresne v. Hutchinson, 3 Taunt.117. [Where two partners wrong-
fully took certain property, and one afterwards settled with the owner for
one half thereof, the owner was permitted to bring trover against the other
partner for the remaining half. McCrillis v. Hawes, 38 Maine, 566.]

6 Per Twisden, J., in Devoe v. Corydon, 1 Keb. 305.

7 Bull. N. P.48; Wingfield v. Stratford, Sayer, R. 15,16; Swayn v. Ste-
phens, Cro. Car. 245; Granger v. George, 5 B. & C.4150; 1 Campb. 558,
per Ld. Ellenborough ; 1 Danv. Abr. 25.

8 1 Tidd’s Pr. 598. See Yelv. 174 a, n. (1), by Metcalf. [An infant is
liable in trover for the conversion of a chattel which he has obtained by
fraud, and refused to. deliver on demand —although he had sold it before
the demand was made upon him — and although he had prevailed, on the plea
of infancy, in an action on a promissory note given by him for this chattel.
Walker v. Davis, 1 Gray, 506. Judgment recovered, (though without satis-
faction,) in trover for conversion by a wrongful sale, is a bar to an action for
money had and received for the proceeds of the same sale, against another,
whether a party to the conversion or not. Buckland v. Johnson, 26 Eng.
Law & Eq. R. 328.]

ee SRR ah ay
704 LAW OF EVIDENCE. [PART IV.

been considered under its appropriate head. It may be
added, that special damages are recoverable, if particularly
alleged.2 If the subject is a bill of exchange, or other secu-
rity, the plaintiff is ordinarily entitled to the sum recoverable
upon it, though the defendant may have sold it for a less
sum. And though the defendant cannot, under the general
issue, show the’ non-joinder of another part owner, to defeat
the action, yét he miay give that fact in evidence, in order to
reduce the plaintiff's damages to the value of his own interest
or share in the property| Where the property has’ not been
restored, the general measure of damages is the value of the
thing taken, to which the Jury may, in their discretion, add
interest on the value ;> and if the goods have been fairly sold
under authority of lose the amount realized by the sale will
ordinarily be taken as their true value. But it has been
held in England, that the Jury are not bound to find the
value at the time of the conversion, but they may find, as
damages, the value at a subsequent time, at their discretion.’
In this country, however, the Courts are, inclined to adhere

 

1 Supra, tit. DAMAGES, § 276. See also supra, 635 a. See further,
Countess of Rutland’s case, 1 Roll. Abr. 5. [In an action of trover there
can be but one assessment of damages. If there are several defendants, and
some are defaulted and others aré found guilty, the judgment is joint, and
the verdict settles the amount of damages for all the defendants, as well those
defaulted as those found guilty. Gerrish v. Cummings, 4 Cush. 392.

2 Davis v. Oswell, 7 C. & P. 804; Moon v. Raphael, 2 Bing. N. C. 310;
Bodley v. Reynolds, 10 Jur. 310; 8 Ad. & El. 779.

3 Alsager v. Close, 10 M. & W. 576; McLeod v. M’Ghie, 2 Man. & Gr.
326; Mercer v. Jones, 8 Campb. 477; [Decker v. Mathews, 2 Kernan,
(N. Y) 313; Baltimore v. Norman, 4Md. 352; Keaggy v. Hite, 12 Ill. 99.]

4 Bloxam v. Hubbard, 5 East, 420; Nelthrope v. Dorrington, 2 Lev. 118;
Wheelwright v. Depeyster, 1 Johns. 471.

5 Finch v. Blount, 7 C. & P. 478, per Patteson, J.; Johnson v. Sunmer,
1 Met. 172; Mathews v. Menedger, 2 McLean, 145; Clark v. Whitaker, 19
Conn. 319.

6 Whitmore v: Black, 18M. & W.507. If the goods have been converted
into money by the defendant, to his own use, this sum, with interest, will be
the lowest measure of damagés. Ewart v. Kerr, 2 McMullen, 141.

7 Greeniig'v. Wilkinson, 1 C. & P. 625. And see Cook v. Hartle,8 C. &
P. 568; Whitehouse v. Atkinson, 3 C. & P. 344,
PART Iv.] TROVER. 705

to the value at the time of the conversion, unless this value
has subsequently been enhanced by the defendant.’ But if
the property has been restored to the plaintiff, this will go
in mitigation of the damages; and if it has been recovered
by him, by the payment of a reward or otherwise, the ex-
pense so incurred is to be allowed to him by the Jury? If
he can be indemnified by a sum of money less than the full
value, as for example, where he has only a special property,
subject to which the defendant is entitled to the goods, that
sum is the measure of damages. But if he'is responsible
over to a third person, or if the defendant is not entitled to
the balance of the value, the plaintiff is entitled to recover
the whole value? Where the action is against an executor
de son tort, proof that the goods have been applied in pay-

 

1 Supra, tit. DamaceEs, § 276. [Moody v. Whitney, 38 Maine, 174;
Backmaster v. Smith, 22 Vt. 203; Swift v. Barnum, 23 Conn. 523; Covell
v. Hill, 2 Selden, (N. Y.) 374; Ewing v. Blount, 20 Ala. 694; Funk v. Dil-
lon, 21 Mis. (6 Bennett,) 294; Salmon v. Horwitz, 28 Eng. Law & Eq. R.
175. In an action against the assignee of an insolvent debtor, for the con-
version by him of property claimed by the plaintiff under a conveyance from
the debtor, if the Jury find the conveyance void under the insolvent law,
the plaintiff cannot recover the cash paid by him to the debtor for the differ-
ence in value between such property and the debt which the conveyance
was made tosecure. Bartlett v. Decreet, 4 Gray, 111, 113.].

2 Greenfield Bank v. Leavitt, 17 Pick. 1. And see Pierce v. Benjamin,
14 Pick. 356, 361; Yale v. Saunders, 16 Verm. R. 243. So, if the goods
have been illegally sold, in discharge of a lien, and bought in by the owner,
who sues the seller in trover. Hunt v. Haskell, 11 Shepl. 309; [Curtis v.
Ward, 20 Conn. 204; Ewing v. Blount, 20 Ala. 694. If the plaintiff admit
that at the time of the conversion the defendant had a lien on the goods for
an ascertained amount, the amount of the lien is to be deducted, and interest
allowed on the balance. Fowler v. Gilman, 13 Met. 267.]

3 Chamberlain v. Shaw, 18 Pick. 278, 283, 284. [The owner of a chattel
transferred the possession thereof to another person, with the agreement
that it should become his property on the payment of a certain sum in
monthly instalments. After some of the instalments were paid, upon a |
failure to pay the remainder, the owner brought trover against a third per- |
son for a conversion of the chattel, and the measure of damages was held to
be, the whole value of the property with interest from the time of the con-
version. Angier v. Taunton, &c. Co. 1 Gray, 621. See also Hyde v. Cook-
son, 21 Barb. 92.]
706 LAW OF EVIDENCE. [PART IV.

ment of debts of the intéstate, is admissible to reduce the
damages; but he cannot retain for his own debt; not, as it
seems, for moneys of his own which he has expended in pay-
ment of other debts of the intestate, if the goods still remain
in his hands?

 

1 Bull. N. P. 48; Whitehall v: Squire, Carth. 104; Mountford v. Gibson,
4 East, 441, 447.

1
a

PART IV.| WASTE. 107

WASTE.

§ 650. Waste is “a spoil or destruction in corporeal here-
ditaments, to the disherison of him that hath the remainder
or reversion in fee simple or fee tail.”! Tt includes every
act of lasting damage, to the freehold or inheritance ; and.
is punishable either by an action of waste, or by an action
on the case. The former is a mixed action, in which the
plaintiff generally recovers possession of the place wasted,
which is forfeited by the tenant, together with damages for
the injury ; but in the latter action, damages only are recov-
ered.

§ 651. The old action of waste still lies in some of the
United States, the Statute of Gloucester, 6 Edw. 1, ch, 5,
having been brought over and adopted in those States as
part of the Common Law ;? though it is seldom resorted to ;
but in others, it has never been recognized; the only remedy
being either an action on the case, or an injunction.®

§ 652. The action of waste lies against a tenant for life or
for years, in favor of him only who has the next immediate
estate of inheritance, in reversion or remainder. The mate-
rial averments in the declaration, and which the plaintiff
must be prepared to prove, are (1.) the title of the plaintiff,

 

12 Bl. Comm. 281; Co. Lit. 52 5, 53, [See Cruise’s Digest, (Green-
leaf’s edition, 1856,) vob i, p. 120, (#115,) tit. iii. ch. 2, § 1-76, and notes.]

2 Jackson on Real Actions, p. 340; Carver ». Miller, 4 Mass. 559; Ran-
dall v. Cleaveland, 6 Conn. R. 329; [Cruise's Digest, (Greenleaf’s edie,
1856,) ut supra, § 26, and note. ]

3 Shult v. Baker, 12 8. & R. 273; Findlay v. Smith, 6 Munf. 184; Bright
v. Wilson, 1 Cam. & Norw. 24; Sheppard v. Sheppard, 2 Hayw. 382.
.

708 LAW OF EVIDENCE. [PART IV.

in stating which he must show how he is entitled to the
inheritance, as fully and correctly as in a writ of entry on
intrusion or any other writ in which an estate for life or
years is set forth in the tenant; (2.) the demise, if there
be one, or other title of the tenant, but with no more par-
ticularity than is necessary in stating an adversary’s title ;
(3.) the quality, quantity, and amount of the waste, and the
place in which it was committed, as, whether in the whole
premises, or in a distinct part of them, and whether it were
done sparsim, as by cutting trees.in different parts of a
wood, or totally, as by prostrating an entire building. The
averment of tenure may be either in the tenet “which the
said 7. holds,” or in the tenuwit, “ which he held,” as it has
reference to the time of the waste done and not the time
of bringing the action. In the former case the plaintiff will
recover the place wasted, namely, that part of the premises
in which the waste was exclusively done, if it were done
in a part only, together with treble damages. But in the
latter case, the tenancy being at an end, he will have judg-
ment for his damages alone. If the waste was committed
by an assignee of a tenant in dower or by the curtesy, the
action, if brought by the heir of the husband or feme, must
be against the original tenant, the assignee being regarded
only as his bailiff or servant. But if the reversioner has
also assigned his inheritance, and the assignee of the tenant
for life has attorned, the latter is considered as the tenant,
and he alone is liable for waste done by himself. So, if any
lessee for life or years commits waste, and afterwards assigns
his whole estate, the action of waste lies against the original
tenant, and the place wasted may be recovered from the
assignee, though he is not a party to the suit, the title of his
assignor having been forfeited previous to the assignment.
But if the assignee himself committed the waste, he alone is
liable to the action. It follows, that a general plea of non-
tenure is not a good plea to this action; but the defendant,
may plead a special non-tenure, as, for example, if he was
lessee for life, and not a tenant in dower or by the curtesy,
he may plead, that he assigned over all his estate, previous
to which no waste was committed ; or, if he was the assignee,
PART IV.] WASTE. 709

he may plead the assignment, and that no waste had subse-
quently been committed.

§ 653. The plea usually termed the general issue, in the
action of waste is, that the defendant “did not make any
waste, sale, or destruction in the messuage and premises
aforesaid, as the plaintiff in his writ and declaration has sup-
posed.” This plea has been said to put in issue the whole
declaration ;? but the better opinion seems to be, that it puts
in issue only the fact and circumstances of the waste done,
to which point alone, therefore, is any evidence admissible.
If the defendant would contest the plaintiff’s title, or would
show any matter in justification or excuse, such as, that he
cut the timber for repairs, or the wood for fuel, or, that his
lease was without impeachment of waste, or that he has sub-
sequently repaired the damage prior to the commencement
of the action, or that he did the act by license from the plain-
tiff, or has any other like ground of defence, he must plead
it specially. :

§ 654. In an action on the case, in the nature of waste,
brought by a landlord, whether lessor, heir, or assignee,
against his tenant, whether lessee or assignee, their respective
titles are not set out with so much precision as in the action
of waste, but their relations to each other are stated in a more
general manner, namely, that the defendant was possessed of
the described premises during the period mentioned, and held
and occupied them as tenant to the plaintiff, to whom the
reversion during the same period belonged, under a certain
demise previously made, and for a certain rent payable there-

 

1 See Jackson on Real Actions, p. 329-337, where also may be found pre-
cedents of the various counts in this action. See also 2 Inst. 301, 302; 2
Saund. 252 a, note (7), by Williams.

2 This opinion of Sergeant Williams, 2 Saund. 238, note (5), founded on
an implied admission of the point in a case in 2 Lutw. 1547, is shown to be
not well founded, in Jackson on Real Actions, pp. 338, 339.

3 2 Saund. 338, note (5), by Williams; Jackson on Real Actions, pp. 339,
340.

VOL. IL. 60
710 LAW OF EVIDENCE. [PART IY.

for to the plaintiff. But if the defendant is tenant for life,
and the plaintiff is remainder-man or reversioner, it seems
necessary to set forth the quantity of the defendant’s estate;
but it is not necessary to state the quantity of the estate of
the plaintiff; nor is it expedient; for if he does state it, and
mistakes it, the variance will be fatal.

§ 655. In both these kinds of action, it seems necessary to
state in the declaration the special waste complained of, as,
‘whether it were voluntary or not, and whether in the house,
and in what part thereof, or whether in the fences or trees,
and the like; and the plaintiff will not be allowed to give
evidence of one kind of waste, under an averment of another ;
as, if the defendant is charged with uncovering the roof of
the house, the plaintiff will not be permitted to prove waste
in the removal of fixtures; and if the averment is, that the
defendant permitted the premises to be out of repair, evidence
of acts of voluntary waste is inadmissible But it is not
necessary in either form of action, for the plaintiff to prove
the whole waste stated; nor in an action on the case, is
there any need that the Jury should find the particular cir-
cumstances of the waste, or find for the defendant as to so
much of the waste as the plaintiff fails to prove; for in this
action the plaintiff goes only for his damages.®

§ 656. Under the general issue, of not guilty, in the action
on the case, the entire declaration being open, the plaintiff
must prove, (1.) his title, and the holding by the defendant,
as alleged; (2.) the waste complained of; and (8.) the

 

12 Saund, 252 c, d, note by Williams.

22 Saund. 252 d, note by Williams; Edge v. Pemberton, 12 M. & W.
187; Ante, Vol. 1,§ 52. If the waste is only permissive, it seems, that an
action on the case in the nature of waste does not lie, the remedy, if any,
being only in contract. Countess of Pembroke’s case, 5 Co. 13; Gibson v.
Wells, 1 New Rep. 290; Herne c. Bembow, 4 Taunt. 764; Jones v. Hill, 7
Taunt. 392; Martin v. Gillam, 7 Ad. & El. 540. But this action lies for
waste done by a tenant, holding over after the expiration of his lease. Kin-
lyside v. Thornton, 2 W. Bl. 1111; Burchell v. Hornsby, 1 Campb. 360.

3 2 Saund. 252 d, e, note by Williams.
PART Iv.] WASTE. ; Til

damages. But it is to be observed that in the United States
the law of waste is not held precisely in the same manner
as in England; but it is accommodated to the condition and
circumstances of a new country, still in the progress of set-
tlement. Therefore, to cut down trees is not always held to
be waste here, in every case where, by the Common Law of
England, it would be so held; but regard is had to the con-
dition of the land, and to the object of felling the trees, and
whether good husbandry required that the land should be
cleared and reduced to tillage; and generally, whether the
tenant has, in the act complained of, conformed to the known
usage and practice of the country in similar cases.| And to
what extent wood and timber may be felled without waste,
is a question of fact for the Jury to decide, under the direc-
tion of the Court2 Under this issue, therefore, it would ©
seem that the defendant may show that the act done was
according to the custom of the country, and for the benefit
of the land, it being virtually to show that it was no waste ;
though by the Common Law of England, such a defence,
being matter in justification or excuse, must be specially
pleaded. But it is no defence to show that the defendant
was bound by covenant to yield up the premises in good
repair at the end of the term, and that therefore the plaintiff
should resort to his remedy on the covenant; for he may
have remedy in either mode, at his election; otherwise, he
might lose his recompense by being obliged to wait until the
end of the term.

 

1 Findlay v. Smith, 6 Munf. 134; Jackson v. Brownson, 7 Johns. 227, 233;
Parkins v. Cox, 2 Hayw. 339; Hastings v. Crunkleton, 3 Yeates, 261. See
1 Cruise’s Dig. tit. 8, Estates for Life, ch. 2, [(Greenleaf’s edition, 1856,)
Vol. 1, page 120, [*115,] § 2, and note.]

2 Jackson v. Brownson, 7 Johns. 227, 233. [In this country no act of a
tenant amounts to waste, unless it is, or may be, prejudicial to the inheri-
tance, or to those who are entitled to the reversion or remainder. Pynchon
v. Stearns, 11 Met. 304. See also Crockett v. Crockett, 2 Ohio N. S. 180;
McCullough ». Irvine, 18 Penn, State R. 438; Clemence v. Steere, 1 Rhode
Isl. 272.]

3 Ibid. See Simmons v. Norton, 7 Bing. 640; 5 Moore & P. 645, 8. C.

4 2 Saund, 252 ¢, note by Williams ; Kialyside v. Thornton, 2 W. BI. 1111;
712 LAW OF EVIDENCE. [PART Iv.

Jefferson v. Jefferson, 8 Lev. 130. [For an unauthorized removal of fix-
tures, put in by a lessee under a special agreement in writing as to his right
to remove, and the lessor’s right to purchase them, the lessor’s remedy is by
action on the agreement and not on the covenant against waste in the lease.
Where there is a special agreement between landlord and tenant regarding
fixtures, it overrules and supersedes the general rules of law regulating their
mutual rights and obligations. Naylor v. Collinge, 1 Taunt. 19; Thresher
v. East London Waterworks, 2 B. & C. 608, and 4-D. & R. 62; Amos &
Ferard on Fixt. 108, 109; Wall v. Hinds, 4 Gray, 256, 273.} :
PART IV.] WAY. 713

WaAyY.

§ 657. A private right of way may be said to exist only
by grant or agreement; for prescription is but a conclusive
presumption of an original grant or right; and necessity, such
as creates a right of way, may be regarded as a conclusive

‘presumption of a grant or a license! The nature of a pre-
scription, whether for a right of way, or other incorporeal
franchise, has already been considered under that title?

§ 658. A right of way of necessity is founded on an im-
plied grant; but convenience alone is not sufficient to raise
the implication of a way.2 Where one has a way of neces-
sity over another’s land, the party, while the way remains

 

1 Nichols v. Luce, 24 Pick. 102; Woolrych on Ways, p. 72, note (q);
Gayetty v. Bethune, 14 Mass. 49, 53. [A right of way carries with it all
rights to the use of the soil properly incident to the free exercise and enjoy-
ment of the right granted or reserved. The abutters on such way have a
right to make improvements therein, so as to make it more beneficial to
themselves, without injury to the owners of the land, or others having an
equal right of way ; but they have not a right to use it for another and dis-
tinct purpose, and it is for the Jury in any given case to determine whether
the use complained of, is for another and distinct purpose than that of a way.
If it be used for such other and distinct purpose, the owner of the land may
have his action, although he sustains no actual damage; the law permitting
him to recover nominal damages to vindicate his right. Appleton v. Fuller-
ton, 1 Gray, 186, 192, 194; Atkins v. Boardman, 2 Met. 467. Where a
grantor conveys land bounding it on a street or way, he and his heirs are
estopped to deny that there is such a street or way. It is an implied cov-
enant of the existence of such a way. Parker v. Smith, 17 Mass. 413;
O’Linda v. Lothrop, 21 Pick. 292; Tufts v. Charlestown, 2 Gray, 272. The
grantor of land may create a right of way therein in his own favor, by a res-
ervation or exception thereof in the grant, either in gross, or as annexed to
land of the grantor. Bowen v. Conner, 6 Cush. 132, Cruise’s Digest, (Green-
leaf’s edition, 1856,) tit. xxiv. Ways, Vol. 2, p. 25-35, (*85-*91.)]

2 Supra, § 537-546.

3 Nichols v. Luce, 24 Pick. 102. And see Brice v. Randall, 7 Gill & J.
349; [Wissler v. Hershey, 23 Penn. State R. 333; Kimball v. Cocheco R. R.

60 *
714 LAW OF EVIDENCE. [PART Iv.

undefined, may pass over any part of the land, in the course
least prejudicial to the owner and passable with reasonable
convenience. But it is the right of the owner of the land to
designate the particular course of such way; and he is bound
to designate a convenient course. If he neglects so to do,
the other party may select the track for himself! And if the
way of necessity results from successive levies of executions
upon the debtoyr’s land, the land taken by the creditor, whose
levy creates the necessity, must be burdened with the ease-
ment.”

§ 659. The proof of a private way must correspond with
the description, whether it be in the declaration in an action
for disturbance of the right, or in a special plea in trespass.
Evidence of user of a right of way for all manner of car-
riages, is not sufficient to support an allegation of such right
for all manner of cattle, though it is admissible under that
issue; nor does evidence of a user of a way with horses,
carts, and carriages, for certain purposes, necessarily prove a
right of way for all purposes.2 But the allegation of a foot-
way, is supported by evidence of a carriage way; and the
allegation of a privdte way is supported by evidence of a
public way ; for in these cases the latter includes the former.

 

Co. 7 Foster, (N. H.) 448; McTavish v. Carroll, 7 Md. 352. See also Hyde
v. Jamaica, 1 Williams, (Vt.) 443. A right of way by necessity can only
arise by grant express or implied; it does not exist where the title of the
parties is by escheat. Proctor v. Hodgson, 29 Eng. Law & Eq. 453.]

1 Holmes v. Seeley, 19 Wend. 507; Russell v. Jackson, 2 Pick. 574;
Capers v. Wilson, 3 McCord, 170.

2 Russell v. Jackson, 2 Pick. 574, 578. And see Pernam v. Weed, 2
Mass. 203; Taylor v. Townsend, 8 Mass. 411; Collins v. Prentice, 15 Conn.
39,423; Farnam v. Platt, 8 Pick. 339. [A-deed of warranty does not estop
the grantor to claim a way of necessity over the land granted. Brigham v.
Smith, 4 Gray, 297.] ©

3 Ballard v. Dyson, 1 Taunt. 279; Cowling v. Higginson, 4 M. & W. 245.
And see Brunton v. Hall, 1 Ad. & El. 792, N. S.; Higham v. Rabett, 3
Jur. 588; 5 Bing. N. C. 622, 8. C.; [French v. Marstin, 4 Foster, (N. H.)
440.]

4 Davies v. Stephens, 7 C. & P. 570, per Ld. Denman; Brownlow v.
Tomlinson, 1 Man. & Gr. 484,
PART IV.] WAY. 715

The extent of the right is a question for the Jury, under all
the circumstances proved. But a user for all the purposes
for which the party had occasion, is evidence of a general
right of way. The termini of the way are also material to
be proved as alleged; for if the proof stops short of either, it
is fatal, unless the pleadings are amended.? But the words
“towards and upto” do not necessarily bind the party to the
proof of a straight road ;* nor is it a fatal variance, if it ap-
pear that the way, in its course, passes over an intermediate
close of the party himself who claims it.*

§ 659 a. Where a private way is claimed by virtue of a
conveyance of land, and as appurtenant.to the same, evidence
aliunde, by parol or otherwise, may be given to prove that a
particular way was then in use by the grantor; in which
case it passed as parcel of the estate conveyed.

§ 660. In an action on the case for disturbance of a way
or other easement, the defendant, on a traverse of the right,
may show that it has ceased to exist; or, that, during the
period of the supposed acquisition of a way by user, the
land was in the possession of a tenant of the plaintiff; or,
that the way was only by sufferance, during his own pleas-
ure, for which the plaintiff paid him a compensation, or
submitted to the condition of a gate across it;® or that the

 

1 Cowling v. Higginson, 4 M. & W. 245; Allan v. Gomme, 11 Ad. & El.
759. See supra, §§ 544, 545. If the proof is of a use, common to all others,
as well as to the party claiming the way, it does not establish a private way.
Prince v. Wilbourne, 1 Rich. 58.

2 See ante, Vol. 1, §§ 58, 62, 63, 71, 72; Wright v. Rattray, 1 East, 377.

3 Rex v. Marchioness of Downshire, 4 Ad. & El. 282.

4 Jackson v. Shillito, cited 1 East, 381, 382. See Simpson v. Lewthwaite,
3B. & Ad. 226. ‘

5 Atkins v. Boardman, 2 Met. 457, 464; White v. Crawford, 10 Mass.
188; United States v. Appleton, 1 Sumn. 492, 501,502; Staples v. Hayden,
6 Mod. 4; Kent v. Waite, 10 Pick. 138. [A right of way appurtenant to
land passes by a deed of the land without express mention of such right,
or of privileges and appurtenances. Brown v. Thissell, 6 Cush. 254; Un-
derwood v. Carney, 1 Ib. 285; Pratt v. Sanger, 4 Gray, 84, 88.]

6 Reignolds v. Edwards, Willes, R. 282.
716 LAW OF EVIDENCE. [PART IV.

plaintiff had submitted to an obstruction upon it for more
than twenty years ;! or, that the right has been extinguished
by unity of title and possession in the same person ;? or that
the right is released and gone, by reason of an extinction or
abondonment of the object for which it was granted; as,
if it be a way to a warehouse, and the house is afterwards
pulled down, and a dwelling-house is built upon the. place.
And if the way is claimed by necessity, he may show, that
the plaintiff can now approach the place by. passing over his
own land.!

§ 661. In trespass, also, if the defendant pleads a right of
“way, which is traversed, the same evidence is admissible on
the part of the plaintiff, by way of rebutting the defence.
So, under this issue, in any action, it may be shown, that the
‘way has been duly discontinued or stopped. But under a
traverse of the right of way pleaded, it is not competent for
the plaintiff to show, that the trespass complained of was
committed beyond the limits of the right alleged; for it is

 

1 Bower v. Hill, 1 Bing. N. C. 549, 555, per Tindal, C.J.; Rex v. Smith,
4 Esp. 109; [Hewins v. Smith, 11 Met. 241; Kilburn v. Adams, 7 Ib. 33.
If the obstruction be only for part of the space over all of which the plain-
tiff claims his right of way, it is. no answer to the plaintiff’s right to pass over
the way as reduced in width, Putnam v. Bowker, 11 Cush. 542, 546.]

2 Woolrych on Ways, pp. 70, 71; Onley v. Gardiner, 4 M. & W. 496;
Thomas v. Thomas, 2 C. M. & R. 34; Clayton v. Corby, 2 Ad. & El. 813,
N.S. [A right of way appurtenant to land over and upon adjoining land,
is not extinguished by the vesting of both estates in the same person as
mortgagee, under separate mortgages, until both mortgages are foreclosed.
Ritger v. Parker, 8 Cush. 145.]

3 Allan v. Gomme, 11 Ad. & El. 759. [The right of passage way to
certain buildings is extinguished by the laying out and constructing a
highway over the site of such buildings. Hancock v. Wentworth, 5 Met.
446.]

4 Holmes v. Goring, 2 Bing. 76. The soundness of this decision is ques-
tioned by Mr. Woolrych, in his treatise on Ways, p. 72, n.; but the rule is
recognized in the United States as good law. McDonald v. Lindall, 3
Rawle, 492; Collins v. Prentice, 15 Conn. R. 39; Smith v. Higbee, 12
Verm. R. 118. See 3 Cruise’s Dig. tit. xxiv. § 10, note, (Greenleaf’s ed.
1856.)

5 Davison v. Gill, 1 Hast, 64.
PART Iv.] way. T1T

irrelevant to the issue, and should be shown either by a rep-
lication of extra viam, or by a new assignment.

§ 662. The existence of a public way is proved, either by a
copy of the record, or by other documentary evidence of the
original laying out by the proper authorities, pursuant to
statutes ;? or, by evidence either of immemorial usage,’ or, of
dedication of the road to public use. In the latter case, two
things are essential to be proved: the.act of dedication, and
the acceptance of it on the part of the public; and this may
be either limited and partial, as of a way excluding carriages,
or it may be absolute and total.t Nor is it necessary that the
dedication be made ‘specifically, to a corporate body, capable
of taking by grant; it may be to the general public, and lim-
ited only by the wants of the community. If accepted and
used by the public in the manner intended, it works an estop-
pel in pais, precluding the owner, and all claiming in his right,
from asserting any ownership inconsistent with such use.
Nor is it necessary to prove who was the owner ; nor, that he
was a private person; for a dedication may be presumed,
even against the sovereign ; and in all cases; unless the state
of the property was such that a dedication of the soil was im-

 

1 Stott v. Stott, 16 East, 343, 349. [See also Hewins v. Smith, 11 Met.
241.

2 a question whether a way is public or private, where the evidence is
conflicting, is to be determined by the Jury. Deake v. Rogers, 3 Hill, (N.
Y.) Rep. 604.

3 Commonwealth v. Low, 3 Pick. 408; Stedman v. Southbridge, 17 Pick.
162; Williams v. Cummington, 18 Pick. 312; The State v, Hunter, 5 Ired.
369; Valentine v. Boston, 22 Pick. 75; Reed v. Northfield, 13 Pick. 94;
Odiorne v. Wade, 5 Pick. 421; Young v. Garland, 6 Shepl. 409. Long use
of a way by the public is primé facie evidence that it was duly laid out as a
public highway; and for this purpose, twelve years have been held sufficient.
Colden v. Thurber, 2 Johns. 424. So has “a considerable time.” Pritchard
v. Atkinson, 3 New Hamp. R. 335, 339. And see The State v. Campton, 2
New Hamp. R. 513; Sage v. Barnes, 9 Johns. 365; Drury v. Worcester,
21 Pick. 44.

4 Marq. of Stafford v. Coyney, 7 B. & C. 257; The State v. Trask, 6
Verm. R. 355. .

5 New Orleans v. The United States, 10 Pet. 662; Bryant v. McCandless,
7 Ohio R. (Part 2),135; Pawlet v. Clark, 9 Cranch, 292, 331.
718 LAW OF EVIDENCE. [PART Iv.

possible The right of the public does not rest upon a grant
by deed, nor upon a twenty years’ possession ; but upon the
use of the land, with the assent of the owner, for such a
length of time, that the public accommodation and private
rights might be materially affected by an interruption of the
enjoyment.2. The issue is therefore a mixed question of
law and fact, to be found by the Jury, under the direction of
the Court, upon consideration of all the circumstances. The
length of the time of enjoyment furnishes no rule of law on
the subject, which the Court can pronounce without the aid
of a Jury, unless, perhaps, where it amounts to twenty
years ; but it is a fact for the Jury to consider, as tending to
prove an actual dedication, and an acceptance by the public?
Hence the Jury have been held justified in finding a dedica-
tion after “four or five years” of enjoyment! In another
great case which was much contested, six years were held
sufficient ;5 and in others it has been held, that after a user

 

1 Reg. v. East Mark, 12 Jur. 332. In this case the way had been used
fifty years ; which was said to be “extremely strong evidence of an inten-
tion of the owner of the soil, whoever he was, to dedicate it to the public, un-
less there was conclusive proof that he had not consented.” Per Erle, J.

2 Cincinnati v. White, 6 Peters, R. 431, 437-440; Reg. v. Hast Mark, 12
Jur. 332; The State v. Catlin, 3 Verm. R. 230; Jarvis v. Dean, 3 Bing. 447;
Brown v. Manning, 6 Ohio R. 298, 303; LeClerq v. Gallipolis, 7 Ohio R.
217, 219; Lade v. Shepherd, 2 Stra. 1004; Pawlet v. Clark, 9 Cranch, 331;
Olcott v. Banfill, 4 N. Hamp. 537, 545, 546; Abbott v. Mills, 3 Verm. R.
519. In Dwinel v. Barnard, 2 Law Rep. 339, 344, N. S., it was held by
the Supreme Judicial Court of Maine, that though it must appear that, the
owner of the land designedly offered it for public or common use, yet the
law does not require the lapse of any particular time to authorize the infer-
ence of adedication. See 14 Shepl. 554, 8. C.; [Curtis v. Angier, 4 Gray,
547.]

3 In the case of a public way by user, the Jury may be authorized by
the circumstances, to find that its limits extended beyond the travelled path,
to the breadth usually laid out as a highway. Sprague v. Waite, 17 Pick.
809; Hannum »v. Belchertown, 19 Pick. 311.

4 Jarvis v. Dean, 3 Bing. 447; Poole v. Huskinson, 11 M. & W.830. See
Best on Presumptions, pp. 183, 134, § 101.

5 Per Ld. Kenyon, in 11 East, 376, . Eight years were held sufficient by
Ld. Kenyon in Rugby Charity v. Merryweather, 11 East, 375, 2.; but both
these cases were questioned by Mansfield, C.J., in 5 Taunt. 142, though
Chambre, J., was of Ld. Kenyon’s opinion. Id. 1837. See also 5 B. & Ald.
PART IY.| way. 719

of “a very few years,” without prohibition, or any visible
sign that the owner meant to preserve his rights, the public
title was complete.’ It isa question of intention, and there-
fore may be proved or disproved by the acts of the owner,
and the circumstances under which the use has been permit-
ted2 It does not follow, however, that, because there is a
dedication of a public way by the owner of the soil, and the
public use it, the town or parish or county is therefore bound
to repair. To bind the corporate body to this extent, it is
said, that there must be some evidence of acquiescence or
adoption by the corporation itself; such as, having actually
repaired it, or erected lights or guide-posts thereon, or having
assigned it to the proper surveyor of highways for his super-
vision, or the like.

 

457, per Holroyd, J.; Rex v. Hudson, 2 Stra. 909; Hobbs v. Lowell, 19
Pick. 405. “ Six or seven years” were recognized as sufficient, in Barclay
v. Howell, 6 Peters, R. 498, 513. But see The State v. Marble, 4 Ired. 318.

1 British Museum v. Finnis, 5 C. & P. 460; Rex v. Lloyd, 1 Campb. 260.
See also Best on Presumptions, p. 133-137, §§ 101, 102; Lade v. Shepherd,
2 Stra. 1004; Commonwealth v. McDonald, 16 S. & R. 3892; Hobbs »v.
Lowell, 19 Pick. 405; Springfield v. Hampden, 10 Pick. 59; Cleveland ».
Cleveland, 12 Wend. 172; Denning v. Roome, 6 Wend. 651.

2 Barraclough v. Johnson, 8 Ad. & El. 99; Woodyer v. Hadden, 5 Taunt.
125; Rex v. Wright, 8 B. & Ad. 681; Surrey Canal Co. v. Hall, 1 Man. &
Gr. 392; Rex v. Benedict, 4 B. & Ald. 447; Hannum v. Belchertown, 19
Pick. 311; Sprague v. Waite, 17 Pick. 309; Wright v. Tukey, 3 Cush. 290;
[Boston v. Lecraw, 17 How. U. 8. 426; Hoole v. Attorney-General, 22 Ala.
190; Larned v. Larned, 11 Met. 421; Bigelow v. Hillman, 87 Maine, 52;
State v. Nudd, 3 Foster, (N. H.) 327; Gould». Glass, 19 Barb. (N. ¥.) 179 ;
Smith v. State, 3 Zabr. 130; Stacey v. Miller, 14 Mis. 478; Regina v. Petrie,
30 Eng. Law & Eq. 207; Kelly’s case, 8 Gratt. 632.]

3 Rex v. Benedict, 4 B. & Ald. 447, per Bayley, J. But see Rex v. Leake,
5 B. & Ad. 469; Hobbs v. Lowell, 19 Pick. 410. See also Todd v. Rome,
2 Greenl. 55; Estes v. Troy, 5 Greenl. 368; Rowell v. Montville, 4 Greenl.
270; Moore v. Cornville, 1 Shepl. 293; The State v. Campton, 2 N. Hamp.
513; [Hemphill v. Boston, 8 Cush. 195; Bowers v. Suffolk Man. Co. 4 Ib.
832, 340; Wright v. Tukey, 3 Ib. 290; Oswego v. Oswego Canal Co. 2 Sel-
den, (N. Y.) 257; Commonwealth v. Cole, 26 Penn. State R. 187; State v.
Carver, 5 Strobh. 217.. And where the way is given for a special and lim-
ited use and purpose, as for a footway, it must be accepted and held for that
purpose only, or it must fail together, and then no public right is established
by the gift. Hemphill v. Boston, ut supra.]
720 LAW OF EVIDENCE. [PART Iv.

§ 663. The dedication, however, must have been made by
the owner of the fee, or, at least, with his assent. The act
of the tenant will not bind the landlord; though after a long
lapse of time, and a frequent change of tenants, the knowl-
edge and assent and concurrence of the landlord may be
presumed from the notorious and uninterrupted use of the
way by the public.

§ 664. The evidence of dedication of a way may be rebut-
ted by proof of any acts on the part of the owner of the soil,
showing that he only intended to give license to pass over
his land, and not to dedicate a right of way to the public.
Among acts of this kind may be reckoned putting up a bar,
though it be for only one day in a year, or excluding persons
from passing through it by positive prohibition.? But the
erection of a gate is not conclusive evidence of a prohibi-
tion, since it may have been an original qualification of the
grants

§ 665. In the case of a pudlic way, no length of time,
during which it may not have been used, will operate of
itself to prevent the public from resuming the right, if they
think proper But in regard to private easements, though
generally they are not lost by non-user for twenty years, un-
less the right-as well as the possession is interrupted,® yet in

 

1 Baxter v. Taylor, 1 Nev. & Man. 13; Wood »v. Veal, 5 B. & Ald. 454;
Rex v. Bliss, 7 Ad. & El. 550; Davies v. Stephens, 7 C. & P. 570; Rex v.
Barr, 4 Campb. 16; Harper v. Charlesworth, 4 B. & C. 574.

2 Best on Presumptions, p. 134, § 101; Rex v. Lloyd, 1 Campb. 260;
Roberts v. Karr, Id. 261, x. ; British Museum v. Finnis, 5 C. & P. 465, per
Patteson, J.

3 Davies v. Stephens, 7C.& P.570. But see Commonwealth v. Newbury,
2 Pick. 57.

4 Per Gibbs, J., in Rex v. St. James, 2 Selw. N. P. 1384 (10th edit.) ;
Vooght v. Winch, 2 B. & Ald. 667, per Abbott, C. J.; Best on Presump-
tions, p. 137, § 103. But see Commissioners v. Taylor, 2 Bay, 286.

5 Supra, tit. Prescription, § 545; Emerson v. Wiley, 10 Pick. 310,
816; Yelv. 142, note (1) by Metcalf; White v. Crawford, 10 Mass. 183,
189.
PART IV.] way. 721

the case of a private way, or other intermittent easement, it
is said, that, though slight intermittence of the user, or slight
alterations in the mode of enjoyment, will not be sufficient
to destroy the right, when circumstances do not show any
intention of relinquishing it, yet-a much shorter period than
twenty years, when it is accompanied by circumstances, such
as disclaimer, or other evidence of intention to abandon the
right, will be sufficient to justify the a in finding an ex-
tinguishment. :

 

1 Gale & Whatley on Easements, pp. 381, 382; Norbury v. Meade et al.
3 Bligh, 241; Harmer v. Rogers, 3 Bligh, N.S. 447; Best on Presumptions,
pp- 137,140, §§ 104,106; Doe v. Hilder, 2 B. & Ald. 791, per Abbott, C. J.;
Hoffman v. Savage, 15 Mass. 130, 132.

VOL. I. 61
722 LAW OF EVIDENCE. [PART Iv.

WILLS.

§ 666. In order to ascertain the quantity and kind of proof
necessary to establish a will, regard is to be had either to the
law of the domicile of the testator, or to the law of the coun-
try where the property is situated, and sometimes to both.
The mode of proof is also affected by the nature of the pro-
ceedings, under which it is offered. In some cases, it is neces-
sary to prove the concurrence of all the circumstances essen-
tial to a valid will, by producing all the subscribing witnesses,
after due notice to the parties in interest ; while in others, it
is sufficient for the occasion, to prove it by a single witness.
There is also a diversity in the effect of these different modes
of proof, the one being in certain cases conclusive, and the
other not. There is, moreover, a diversity of rule, arising
from the nature of the property given by the will; a few
States still recognizing the distinction between a will of per-
sonalty, at Common Law, and a devise of lands, under the
Statute of Frauds, in regard to the formalities of their execu-
tion ; and others having by statute established one uniform
rule, in all cases. These varieties of law and practice create
great embarrassments in the attempt to state any general
rules on the subject. But still it will be found that, on the
question as to what law shall govern, in the requisites of a
valid will, there is great uniformity of opinion; and that the
several United States, in their legislation respecting wills,
have generally adopted the provisions of the statute of 29
Car. 2, ch. 8, commonly called the Statute of Frauds.

§ 667. It will therefore be attempted, first, to consider by
what law wills are governed, and then to state the formali-
ties generally required in the execution of wills, noting some
local exceptions as we proceed. Thus it will be seen to what
extent the evidence must be carried, in the complete and
formal proof of any will.
PART IV.] WILLS. 723

§ 668. (1.) As to what law is to govern the formalities of
a will, a distinction is to be observed between a will of per-
sonalty or movables, and a will of immovable or real prop-
erty. In regard to a will of personal or movable property,
the doctrine is now fully established, that the law of the
actual domicile of the testator is to govern; and if the will is
void by that law, it is a nullity everywhere, though executed
with the formalities required by the law of the place where
the personal property is locally situated. There is no differ-
ence in this respect, between cases of succession by testa-
ment, and by intestacy, both being alike governed by the
rule Mobilia personam sequuntur And if after making a
valid will, the testator changes his domicile to a place by
whose laws the will thus made is not valid, and there dies,
his will cannot be established; but if still surviving, he
should return to and use his former domicile, or should
remove to another place having similar laws, the original
validity of his will or testament will be revived.? It results,
that a will of personalty may be admitted to probate, if it is
valid by the law of the testator’s last domicile at the time of
his decease, though it is not valid by the law of the place of
the probate?

§ 669. From this rule it would seem to follow, almost as
a matter of necessity, that the same evidence must be ad-
mitted to establish the validity and authenticity of wills of
movables, made abroad, as would establish them in the dom-
icile of the testator; for otherwise the general rule above

 

1 Story, Confl. Laws, §§ 467, 468, 469; Stanley v. Barnes, 3 Hagg. Eccl.
R. 373; Dessebats v. Barquier, 1 Binn. 336; Crofton v. Isley, 4 Greenl.
134; Vattel, b. 2, ch. 8, §§ 110, 111; 4 Kent, Comm. 513; 1 Jarman on
Wills, p. 2-6, and notes by Perkins; De Zichy Ferraris v. Marq. of Hert-
ford, 3 Curt. 468. [An Englishman, residing in Spain, directed his wife to
make his will after his decease, such a will being valid by the law of Spain,
and a will so made by the wife, in pursuance of such directions, was held
valid in England. In re Osborne, 33 Eng. Law & Eq. 625.]

? Story, Confl. Laws, § 473; 4 Burge on Colo. and For. Law, pp. 580,
591.

3 In re De Vaer Meraver, 1 Hagg. Eccl. R. 498.
724. LAW OF EVIDENCE. [PART Iv.

stated might be sapped to its very foundation, if the law of
evidence in any country, where the movable property was
situate, was not precisely the same as in the place of the
testator’s domicile. And, therefore, parol evidence has been
admitted in Courts of Common Law, to prove the manner
in which a will is made and proved in the place of the tes-
tator’s domicile, in order to lay a suitable foundation to estab-
lish the will elsewhere.

§ 670. But in regard to wills of immovable or real property,
it is equally well established, that the law of the place, where

 

1 Story, Confl. Laws, § 636; De Sobry v. De Laistre, 2 Har. & Johns.
191,195; Clark v. Cochran, 3 Martin, R. 353, 361, 362. And see Wilcox
v. Hunt, 13 Peters, R. 378, 379; Don v. Lippmann, 5 Cl. & Fin. 15, 17;
Yates v. Thompson, 3 Cl. & Fin. 544,574. The rule that a devise of lands
must be executed in the form required by the law of the place where the
lands lie, though a general rule of law, has been expressly enacted in the
statutes of Maine, New Hampshire, Delaware, Rhode Island, Indiana, and
Missouri. In several other States a contrary rule is adopted, by which
lands in those States may pass by a will, made in a foreign State, in the form
required by the law of the place where it was made. But to have this effect,
the foreign will must have been first proved abroad, and then be admitted by
a certified copy, to be filed and registered in the State where the lands lie.
Such is the rule, as expressly enacted, in Massachusetts, Vermont, Florida,
Michigan, Illinois, Louisiana, and Arkansas. Whether such is the legitimate
effect of the rule adopted in other States, as in Virginia, Ohio, New Jersey,
Kentucky, Tennessee, Mississippi, and Alabama, where a copy of the foreign
will being duly proved abroad, may be allowed in the Court of Probate, and
admitted to be recorded, quere. See Dublin v. Chadbourn, 16 Mass. 433;
[Parker v. Parker, 11 Cush. 519]; Bailey v. Bailey, 8 Ohio, 239; Mease v.
Keefe, 10 Ohio, 362; 1Jarm. on Wills, pp. 1, 2, note by Perkins; Maine
Rev. St. 1840, ch. 107, § 20; Mass. Stat. 1843, ch. 92; [Bayley v. Bayley,
5 Cush. 245]; N. Hamp. Rev. Stat. 1842, ch. 157, § 13; R. Island Rev.
Stat. 1844, p. 237; Verm. Rev. St. 1839, ch. 45, § 24; Del. Rev. St. 1829,
p- 557; Ind. Rev. St, 1843, ch. 30, § 51; Missouri Rev. St. 1845, ch. 185,
§ 35; Flor. Thomps. Dig. p. 194; Mich. Rev. St. 1846, ch. 68, § 21-24;
Illinois Rev. ‘Stat. 1839, p. 688; Louis. Civ. Code, art. 1589; Ark. Rev.
St. 1837, ch. 157, § 36; Tate’s Dig. p. 900; Ohio Rev. St. 1841, ch. 120,
§ 29-33; N. Jersey Rev. St. 1846, tit. 10, ch. 9, § 2; Ky. Rev. St. 1834,
Vol. 2, p. 1548; Tenn. Rev. St. 1836, p. 593; Missi. Rev. St. 1840, ch. 36,
§§ 13, 14; Ala. Tuolm. Dig. p. 885. See 6 Cruise’s Dig. tit. 38, ch. 5, § 69,
note. (Greenleaf’s ed. 1857.)
PART IV.] WILLS. 725

the property is locally situated, is to govern, as to the capacity
or incapacity of the testator, the extent of his power to dis-
pose of the property, and the forms and solemnities to give
the will its due attestation and effect.

§ 671. In the interpretation of wills, whether of movable or
immovable property, where the object is merely to ascertain
the meaning and intent of the testator, if the will is made at
the place of his domicile, the general rule of the Common
Law is, that it is to be interpreted by the law of that place
at the time when the will was made. Thus, for example, if
the question be, whether the terms of a foreign will include
the “real estate” of the testator, or what he intended to
give under those words; or whether he intended that the
legatee should take an estate in fee or for life only ; or who
are the proper persons to take, under the words “heirs at
law,” or other designatio personarum, recourse is to be had
to the law of the place where the will was made and the
testator domiciled? And if the will is made in the place
of‘his actual domicile, but he is in fact a native of another
country ; or if it is made in his native country, but in fact
his actual domicile at the time is in another country ; still, it
is to be interpreted by reference to the law of the place of
his actual domicile The question, whether, if the testator
makes his will in one place, where he is domiciled, and after-
wards acquires a new domicile in another country, where he
dies, the rule of interpretation is changed by his removal, so
that if the terms have a different meaning in the two coun-
tries, the law of the new domicile shall prevail, or whether the
interpretation shall remain as it stood by the law of the

 

1 Story, Confl. Laws, § 474, and authorities there cited; 4 Burge on
Colon. & For. Law, pp. 217, 218; 1 Jarman on Wills, pp. 1, 2, and notes by
Perkins; 4 Kent, Comm. 513.

2 Story, Confil. Laws, § 479, a, b, c, e, h, m; Harrison v. Nixon, 9 Peters,
R. 483. ;

3 Story, Confl. Laws, § 479, f; 4 Burge on Colon. & For. Law, 590, 591 ;
Anstruther v. Chalmer, 2 Sim. R. 1; Ante, Vol. 1, §§ 282, 287-292; 1 Jar-

man on Wills, p. 5-8.
61*
726 LAW OF EVIDENCE. [PART Iv.

domicile’ where the will was made, is a question, which does
not seem yet to have undergone any absolute and positive
decision in the Courts acting under the Common Law.!

§ 672. In determining the effect of the probate of wills,
regard is to be had to the jurisdiction of the Court where the
will is proved, and to the nature of the proceedings. For, as
we have heretofore seen, it is only the judgments of Courts
of exclusive jurisdiction, directly upon the point in question,
that are conclusive everywhere, and upon all persons? In
England, the Ecclesiastical Courts have no jurisdiction what-
soever over wills, except those of personal estate; and hence
the probate of wills, by the sentence or decree of those Courts,
is wholly inoperative and void, except as to personal estate;
being, as to the realty, not even evidence of the execution
of the will. The validity of wills of real estate is there cog-
nizable only in the Courts of Common Law, and in the
ordinary forms of suits; and the verdict and judgment are
conclusive only upon the parties and ptivies, as in other cases.
But as far as the personal estate is concerned, the sentence or
decree of the proper Ecclesiastical Court, as to the validity or
invalidity of the will, is final and conclusive upon all persons,
because it is in the nature of proceedings in rem, in which
all persons may appear and be heard upon the question, and
it is the judgment of a Court of competent jurisdiction, di-
rectly upon the subject-matter in controversy? But in many
of the United States, Courts are constituted by statute, under
the title of Courts of Probate, Orphans’ Courts, or other
names, with general power to take the probate of wills, no
distinction being expressly mentioned between wills of per-
sonalty and wills of real estate; and where such power is
conferred in general terms, it is understood to give to those
Courts complete jurisdiction over the probate of wills as well

 

1 Harrison v. Nixon, 9 Peters, R. 483, 505; Story, Confl. Laws, §479 g.
2 Ante, Vol. 1, §§ 528, 550.
3 1 Williams on Executors, b. 6, ch. 1, p. 889-348 (1st Am. edit.) ; 1 Jar-

man on Wills, pp. 22, 23, and notes by" Perkins; Tompkins v. Tompkins,
1 Story, R. 547.
PART IVv.| WILLS. 727

of real as of personal estate, and therefore to render their
decrees conclusive upon all persons, and not reéxaminable
in any other Court.

§ 673. (2.) The highest degree of solemnity, which is
required in the formal execution of wills, is that which is
required in a will of lands, by the Statute of Frauds ;? and

1 Such is the law in Maine and Massachusetts. Potter v. Webb, 2 Greenl.
257; Small v. Small, 4 Greenl. 220, 225; Osgood v. Breed, 12 Mass. 533,
534; Dublin v. Chadbourn, 16 Mass. 433, 441; Laughton v. Atkins, 1 Pick.
548, 549; Brown v. Wood, 17 Mass. 68, 72. So, in Rhode Island. ‘Tomp-
kins v. Tompkins, 1 Story, R. 547. So, in New Hampshire. Poplin v. Hawke,
8 New Hamp. 124. So, in Connecticut. Judson v. Lake, 3 Day, R. 318;
Bush v. Sheldon, 1 Day, R. 170. So, in Ohio. Bailey v. Bailey, 8 Ohio R.
239, 346. So, in Louisiana. Lewis’s Heirs v. His Ex’rs, 5 Louis. R. 387,
393, 394; Donaldson v. Winter, 1 Louis. R. 187, 144. So, in Virginia.
Bagwell v. Elliot, 2 Rand. 190, 200. So, in Alabama, after five years. Toul-
man’s Dig. 887; Tarver v. Tarver, 9 Peters, R. 180.

In Pennsylvania and North Carolina, the probate of a will of lands is
prima facie evidence of the will, but not conclusive. Smith v. Bonsall,
5 Rawle, 80, 83; Coates v. Hughes, 3 Binn. 498, 507; Stanley v. Kean,
1 Taylor, 93. !

In several other States, the English rule is followed; as, in New York ;
Jackson v. LeGrange, 19 Johns. 386 ; Jackson v. Thompson, 6 Cowen, R.
178; Rogers v. Rogers, 3 Wend. 514, 515; and in New Jersey ; Harrison
v. Rowan, 3 Wash. 580; and in Maryland; Smith v. Steele, 1 Har. & McH.
419; Darby v. Mayer, 10 Wheat. 470; and in South Carolina ; Crossland
v. Murdock, 4 McCord, 217; [Walker v. Hunter, 17 Geo. 364; Hardy v.
Hardy,'26 Ala. 524.]

Whether a will of lands, duly proved and recorded, in one State, so as to
be evidence in the Courts of that State, is thereby rendered evidence in the
Courts of another State, under the Constitution of the United States, Art. 4,
does not appear to have been decided. See Darby v. Mayer, 10 Wheat.
465. In Ohio, it is made evidence by statute. Bailey v. Bailey, 8 Ohio R.
239, 240; [Fortune v. Buck, 23 Conn. 1; Barker v, McFerran, 26 Penn.
State R. 211. In Massachusetts, the decree of the Court of Probate duly
approving and allowing the will of a married woman, unappealed from and
unreversed, is final and conclusive upon the heirs at law of the testator, and
they cannot in a Court of Common Law deny the legal capacity of the testa-
trix to make such a will. Parker v. Parker, 11 Cush. 519, 524.]

2 29 Car. 2,c. 3,§ 5. By Stat. 7 W.4, & 1 Vict. c. 26, § 9, it is now pro-
vided, that no will, whether of real or personal estate, (except certain wills
of soldiers and sailors,) shall be valid, “unless it shall be in writing, and
728 LAW OF EVIDENCE. [PART Iv.

this chiefly respects the signature and the attestation by wit-
nesses. These formalities, all of which are ordinarily required
to be shown upon the probate of wills in the Courts of Pro-
bate in the United States, we now proceed to state.

§ 674. And, first, as to the signature of the testator. A
“signature” consists both of the act of writing the party’s
name, and of the intention of thereby finally authenticating
the instrument. It is not necessary that the testator should
write his entirename. His mark is now held sufficient, even
though he was able to write. And if the signature is made
by another person guiding his hand, with his consent, it
is sufficient.2 But sealing alone, without signing, will not

signed at the foot or end thereof by the testator, or some other person in
his presence and by his direction; and unless such signature be made or
acknowledged by him in the presence of two or more witnesses present at
the same time, and unless such witnesses attest and subscribe the will in his
presence ; and no publication other than is implied in the execution so at-
tested, shall be necessary.” For the formalities required in the execution of
wills in the United States, see 6 Cruise’s Dig. tit. 38, ch. 5, passim, notes,
(Greenleaf’s ed. 1857.)

1 Baker v. Dening, 8 Ad. & El. 94; Jackson v. Van Dusen, 5 Johns. 144;
In re Field, 8 Curt. 752; Taylor v. Draing, 3 .N. & P. 228; In re Bryce,
2 Curt. 825; Wilson v. Beddard, 12 Sim. 28; Harrison v. Elwin, 3 Ad. &
El. 117, N.S. In Pennsylvania, the will must be signed at the end, with
the testator’s own name, if he is able to write it; and if not, by some person
in his presence and by his express direction ; the incompetency and signa-
ture by request being provided by two witnesses; Stat. April 8, 1883; or,
by his mark or cross; Stat. Jan. 27, 1848. Dunlap’s Dig. pp. 571, 1106.
Where the testator made his mark, but the scrivener wrote the wrong chris-
tian name over it, the Court held that under this latter statute the will was
well executed, the mark governing the written name, and satisfying the
statute. Long v. Zook, 3 Am. Law Journ. 27. In Ohio, New York, and
Arkansas, also, the signature must be at the end of the will. See 6 Cruise’s
Dig. tit. 38, ch. 5, §§ 1, 9, notes, (Greenleaf’s edit.) ; [Pridgen v. Pridgen,
13 Ired. 259. A testator’s name was signed to his will by another person,
at his request, and he then made his mark. It was held, that this was not a
sufficient execution of the will under the Missouri statute. Northeutt »v.
Northcutt, 20 Mis. 266. If the attestation clause in a will recites that the
testator has made his mark, it is sufficient if the testator writes his initials,
instead of making’a mark. Jn re Savory, 6 Eng. Law & Eq. 583.]

2 Stevens v. Vancleve, 4 Wash. 262, 269. [A dying man declared a
PART IV.] WILLS. 729

suffice; nor is a seal necessary in any case, unless it is re-

quired by an express statute. One signature by the testator

is enough, though the will is written upon several sheets of
paper; and if the testimoniwm clause refers to the preceding
sheets as severally signed with his name, whereas he has

signed at the end only, this will suffice, if it appears to have

been in fact intended to apply to the whole” Such intention

would probably be presumed from his acknowledgment of the

instrument, to the attesting witnesses, as his will, without
alluding to any further act of signing Nor is it material.
on what part of the document the signature is written, if it
was made with the design of completing the instrument,
and without contemplating any further signature. On this

ground, a will written by the testator, and beginning, —* I,

A. B., do make,” &c., has been held, under the circumstances,

sufficiently signed.*

§ 675. Publication is defined to be. that, by which the party
designates that he means to give effect to the paper as

 

paper to be his will, tried to sign it and failed, and made no request that
any one should sign it for him; and it was held, that the instrument was no
will. Ruoff’s- Appeal, 26 Penn. State R. 219.]

1 Pratt v. McCullough, 1 M’Lean, R. 69. And see Avery v. Pixley, 4
Mass. 460, 462; Hight v. Wilson, 1 Dall. 94; Doe d. Knapp ». Pattison,
2 Blackf. 355; Ante, Vol. 1, § 272. A seal is not now requisite to the valid-
ity of a will, in any of the United States, except New Hampshire, in which
State a seal seems still to be required in a devise of real estate, but not in
a will of personalty. See Rev. Stat. ch. 156, § 6; Stat. 1848, ch. 424,

2 Winsor v. Pratt, 2B. & B. 650. It is not essential to the validity of a
will that the different parts of it should be physically connected. It is suffi-
cient if they are connected by their internal sense, or by a coherence and
adaptation of parts. Wikoff’s Appeal, 15 Penn. State R. 281.]

3 1 Jarman on Wills, pp. 70, 71.

4 Lemayne v. Stanley, 3 Lev. 1; 1 Jarman on Wills, p. 70, and note @)
by Perkins; Right v. Price, 1 Daurls 241; Doe v. Evans, 1 C. & M. 42; 8,
Tyrw. 56; Sarah Miles’s Will, 4 “Dana, 1. In Ohio, Pennsylvania, New
York, and Arkansas, the signature is, by statute, required to be placed at
the end of the will. 2 Rev. Stat. N. Y. p. 63; Watts v. The Public Ad-.

-ministrator, 4 Wend. 168; Rev. Stat. Ark. ch. 157,§ 4. See 6 Cruise’s
Dig. tit. 38, ch. 1, 5, 9,14, 18, 19, notes, (Greenleaf’s ed. 1857.)
-

730 LAW OF EVIDENCE. [PART IV.

his will! <A formal publication of the will by the testator
is not now deemed necessary; it being held, that the will
may be good, under the Statute of Frauds, without any
words of the testator, declaratory of the nature of the instru-
ment, or any formal] recognition of it, or allusion to it? But
though sanity is generally presumed, yet it is incumbent on
the party, asking for the probate of a will, affirmatively to
establish that the testator, at the time of executing it, knew
that it was his will It is not necessary, however, that this
knowledge be proved by direct evidence; it may be inferred
from his observance of the forms and solemnities required by
statute for the due execution of a will* And where the

 

1 Per Gibbs, C. J., in Moodie v. Reid, 7 Taunt. 362; [Dean v. Dean, 1
Williams, (Vt.) 746; Cilley v. Cilley, 34 Maine, 162.]

2 Ibid.; 1 Jarman on Wills, p. 71. See 6 Cruise’s Dig. tit. 38, ch. 5, §§ 14,
18, 52, notes, (Greenleaf’s ed. 1857.) White v. The British Museum,
6 Bae 310; Wright v. Wright, 7 Bing. 457; Warren v. Postlethwaite,
9 Jur. 721. And see 4 Kent, Comm. pp. 515, 516; Small v. Small, 4 Greenl.
220. This question is now settled avcordingly, j in England, by Stat. 1 Vict.
ch. 26, §$ 9, b1, 12, 13.

3 White v. The British Museum, 6 Bing. 310; Sweet v. Boardman,
1 Mass. 258; 4 Dane, Abr. p. 568; Gerrish v. Nason, 9 Shepl. 438. In
New York, a declaration of the testator, that the instrument is his will, is
required by 2 Rev. Stat. p. 63, § 40. See Brinckerhoof v. Remsen, 8 Paige,
488; 26 Wend. 325, 830, S. C. So in North Carolina. 1 Jarmanon Wills,
p- 71, note (1) by Perkins.

4 Ray v. Walton, 2 A. K. Marsh. 71. And see Trimmer v. Jackson,
4 Burn’s Eccl. L. p. 130, (8th edit.) On proof of the signature of the tes-
tator, it will ordinarily be presumed that he knew the contents of the will.
Billinghurst v. Vickers, 1 Phillim. Eccl. R. 191; Fawcett v. Jones, 3 Phillim.
Eccl. R.476 ; Wheeler v. Alderson, 3 Hage. Eccl. R. 587. But this presump-
tion may be repelled by proof of any circumstances of an opposite nature,
such as hisi ignorance, sickness, state of mind, or the like; or, the inconsistency
of its provisions with his obvious duty or known sifsctiona or, the character
and interests of the person who wrote the instrument. Ibid; Ingram ».
Wyatt, 1 Hagg. Eccl. R. 384; Parke v. Ollat, 2 Phillim. Eccl. R. 324 ; Paine
v. Hall, 18 Ves, 475 ; Duillng v. Loveland, 2 Curt. 226. [Jn re Maxwell's
Will, 4 Halst. Ch. R. (N. J.), 251. And where the due execution of the
will and the sanity of the testator are shown, it will be presumed that the
testator knew its purport, though he could not read the language in which -
it was written. Hoshauer v. Hoshauer, 26 Penn. State R. 404.]
PART IV.] WILLS. 731

testator, knowing the instrument to be his will, produced it
to three persons, asking them to attest it as witnesses ; and
they did so in his presence, and returned it to him, this was
considered as a sufficient acknowledgment to them, in fact,
that the will was his.1

§ 676. Nor is it deemed necessaty, that the witnesses
should actually see the testator sign his name. The statute
does not in terms require this, but only directs that the will
be “attested and subscribed in the presence of the testator
by three or four credible witnesses.” They are witnesses
of the entire transaction; and therefore it is held, that an
acknowledgment of the instrument, by the testator, in the
presence of the witnesses, whom he requests to attest it, will
suffice; and that this acknowledgment need not be made
simultaneously to all the witnesses, but is sufficient if made
separately to each one, and at different times.? Nor is it
necessary that the acknowledgment be made in express
terms ; it may be implied from circumstances, such as re-
questing the persons to sign their names as witnesses. But
in such cases, it must appear that the instrument had pre-
viously been signed by the testator? ,

 

1 White v. The British Museum, 6 Bing. 310. See also Hall v. Hall,
17 Pick. 373. [A will in the handwriting of the testator, and signed by him
in the presence of three competent witnesses, who attest the same at his
request and in his presence, is well executed, although the testator does not
declare to the witnesses, and they do not know, that it is his will. Osborn
v. Cook, 11 Cush. 532; Hogan v. Grosvenor, 10 Met, 54. See also Beane
v. Yerby, 12 Gratt. (Va.) 239. But see Brown v. De Selding, 4 Sandf.
Sup. Ct. 10.] ;

2 Tlott v. George, 3 Curt. 160; In re Rawlins, 2 Curt. 326; Jn re War-
den, Id. 334; In re Ashmore, 3 Curt. 607; Blake v. Knight, Id. 547.
[Where one of the subscribing witnesses positively negatives the fact of
the signing or of the acknowledgment of the signature by the deceased
in his presence, and there are no circumstances that raise any presumption
of his being mistaken, the proposed will cannot be admitted to probate.
Noding +. Alliston, 2 Eng. Law & Eq. 594. See Shaw v. Neville, 33 Ib.
615; Bennett v. Sharpe, Ib. 618.]

31 Jarman on Wills, pp. 71, 72, and note (1) by Perkins; Grayson v.
Atkinson, 2 Ves. 454, 460; Hall v. Hall, 17 Pick. 373; Dewey v. Dewey,
_ 182 LAW OF EVIDENCE. [PART Iv.

a

§ 677. The will must also be attested and subscribed by
at least three competent witnesses.1_ And here, also, as in the

’

 

1 Met. 349; Gaze v. Gaze, 3 Curt. 551; Keigwin v. Keigwin, Id. 607;
Cooper v. Bockett, 4 Moore, P. C. Rep. 419. It is held otherwise in New
Jersey, under the act of 1714. Den v. Matlock, 2 Harrison, R. 86; 4 Kent,
Comm. 414, n.; Johnson v. Johnson, 1 Cr. & M. 140; Supra, § 295.

1“ By the New York Revised Statutes (vol.,2, p. 63, §§ 40, 41,) the tes-
tator is to subscribe the will at the end of it, in the presence of at least two
witnesses, who are to write their places of residence opposite their names,
under the penalty of fifty dollars; but the omission to do it will not affect
the validity and efficiency of their attestation. Lewis v. Lewis, 13 Barb.
17. Three witnesses, as in the English Statute of Frauds, are required in
Vermont, New Hampshire, Maine, Massachusetis, Rhode Island, Connecticut,
New Jersey, Maryland, Florida, South Carolina, Georgia, Alabama, and
Mississippi. Two witnesses only are required in New York, Ohio, Michigan,
Delaware, Virginia, Indiana, Illinois, Missouri, North Carolina, Kentucky,
Tennessee, [ Wisconsin,] and Arkansas. In some of the States, the provision
as to attestation is more special. In Pennsylvania, a devise of lands in
writing will be good without any subscribing witnesses, provided the authen-
ticity of it can be proved by two witnesses; and if the will be subscribed by
witnesses, proof of it may be made by others. Hight v. Wilson, 1 Dallas,
94; Per Huston, J.; 1 Watts, 463. Proof of the signature of the testator
to a will by two witnesses, is prima facie evidence of its execution, although
the body of it be not in the handwriting of the testator. Weigel v. Weigel,
5 Watts, 486. In North Carolina two witnesses are required to a will of real
estate, unless the will is in the handwriting of the deceased person, and is fyund
among his valuable papers, or lodged with some person for safe-keeping.
The name of the testator in such case must be proved by the opinion of three
witnesses. 1 Rev. Laws, N. C. 619, 620, ch, 122, § 1. Soin Tennessee. In
Virginia, if the will is not wholly written by the testator, it must be attested
by two or more credible witnesses, &c. 1 Rev. Code, Virg. 375. In Mis-
sissippi, there raust be three witnesses to a will of real, and one to a will of
personal, estate unless wholly written and subscribed by the testator. Howard
& Hutch. Dig. Laws Miss. (1840,) p. 386, ch. 36, § 2. In Arkansas, a will
written through by the testator, needs no subscribing witness, but the will
must be proved in such case by three disinterested witnesses, swearing
to their opinion. Still, a will in due form subscribed, will be effectual as
against one not so subscribed. Rev. Stat. ch. 157, §§ 4, 5. Every person in
that State who subscribes the testator’s name, shall sign as witness, and
state that he signed the testator’s name at his request. Ibid. A will executed
in South Carolina, in the presence of two witnesses, who alone subscribe it,
is not sufficiently executed under the statute to pass real estate, although
the scrivener was also presevt at the execution, and a codicil executed in
the presence of two subscribing witnesses, one of whom was different from
PART Iv.] WILLS. 733

case of the testator, a mark made by the witness as his signa-
ture, is a sufficient attestation! No particular form of words
is necessary in the attestation-clause, nor need it express that
the witnesses signed in the presence of the testator, it being
sufficient if this is actually proved? It may also be inferred
from the regular appearance of the instrument, or other cir-
cumstances in the case.?

§ 678. The requisition that the witnesses should subscribe
their names in the presence of the testator, is in order that he
may have ocular evidence of the identity of the instrument
attested as his will, and to prevent the fraudulent substitution
of another. To constitute this “ presence,” it is necessary
not only that the testator be corporally present, but that he
be mentally capable of recognizing, and be actually conscious
of, the act which is performed before him. Therefore, if,
after he had signed and published his will, and before the
witnesses subscribe it, he falls into a state of insensibility

the two witnesses to the will, does not give effect to the will, as to the real
estate. Dunlap v. Dunlap, 4 Desaus. 305. The laws of South Carolina, at
the time of the above decision, required three witnesses to a will of real
estate only; but now they require three witnesses to a will of personal
estate also. Statutes at Large of S. Car. Vol. 3, p. 342, No. 544, § 2; Id.
Vol. 4, p. 106, No. 1455, § 2; Id. Vol. 6, p» 238, No. 2334, § 8.” See 1
Jarman on Wills, p. 69 a, note by Perkins; 4 Kent, Comm. 514; Ante,
Vol. 1, § 272, n, (1); 6 Cruise’s Dig. tit. 38, ch. 5, § 1, note; Id. § 14, note.
(Greenleaf’s ed. 1857.)

1 Ante, Vol. 1, § 272; Harrison v. Harrison, 8 Ves. 185; Addy v. Grix,
Id. 504; George v. Surrey, 1 M. & Malk. 516; Jackson v. Van Deusen,
5 Johns. 144; Adams v. Chaplin, 1 Hill, 8. Car. Rep. 266; 9 Louis. R. 512;
4 Kent, Comm. 514, n.; Harrison v. Elwin, 3 Ad. & EL. 117, N. S.; Doe v.
Davis, 11 Jur. 182. [See also Wigan v. Rowland, 21 Eng. Law & Eq.
132.]

2 Where the witnesses testified that they saw the testator write on a
paper, and that they signed it as witnesses, but they could not now swear
that what he wrote was his name, nor to his name being on the will, but
they identified the instrument produced, as being the paper they subscribed,
on which was the testator’s signature; this was held sufficient. Thompson
v. Hall, 16 Jur. 1144; 14 Eng. L. & Eq. R. 596.

3 Handy v. James, 2 Com. R. 531; Croft v. Pawlett, 2 Stra. 1109; Jack-
son v. Christman, 4 Wend. 277; Burgoyne v. Showler, 1 Rob. Eccl. R, 5.

VOL. It. 62
734 LAW OF EVIDENCE. [PART Iv.

whether temporary or permanent; or, if the will is sub-
scribed by the witnesses in a secret and clandestine manner,
without his knowledge, though it be in the same apartment:
in both cases it is alike void” To be corporally present, it is
not essential that the testator be in the same apartment; for
if the situation and circumstances of the parties are such,
that the testator in his actual position might have seen the
act of attestation, it is enough, though they are not in the
same apartment,’ nor even in the same house ;* and, on the
other hand, if his view of the proceedings is necessarily ob-
structed, the mere proximity of the places of his signature
and of their attestation, will not suffice, even though it were
in the same apartment. An attestation, made in the same
room with the testator, is presumed to have been made in his
presence until the contrary is shown; and an attestation
not made in the same room, is presumed not to have been
made in his presence, until it is shown to have been other-

 

1 Right v. Price, 1 Doug. 241. In New York, the statute has not made
it necessary that the witnesses should subscribe in the presence of the tes-
tator. 4 Kent, Comm. 514,515. Soin Arkansas, and in New Jersey. In
Vermont alone, the witnesses are required to sign in presence of each other.
See 6 Cruise’s Dig. tit. 38, ch. 5, §§ 1, 23, notes, (Greenleaf’s ed. 1857.)
[Blanchard v. Blanchard, 32 Vt. 62.]

2 Longford v. Eyre, 1 P. Wms. 740.

3 Shires v. Glascock, 2 Salk. 688; 1 Ld. Raym. 507, S. C.; Winchelsea
v. Wauchope, 3 Rus. 441, 444; Tod v. E. of Winchelsea, 2 C. & P. 488,
8. C.; Davy v. Smith, 3 Salk. 395. In Russell v. Falls, 3 Har. & McHen.
468, 464, which was very much considered, it was held, that it was neces-
sary that the testator should have been able to see the attestation, without
leaving his bed. And see, to the same effect, Doe v. Manifold, 1 M. & S.
294. [See Moore v. Moore, 8 Gratt. 307; Lyon v. Smith, 11 Barb. 104.]

4 Casson v. Dade, 1 Bro. Ch. Cas. 99; Dewey v. Dewey, 1 Met. 349.
[Where the witnesses to a will subscribe their names not in the same room
with, nor in the presence, view, or hearing of the testator, although in a
room connected by an intermediate room with that in which he is lying, it
is not a sufficient signing. Boldry v. Parris, 2 Cush. 484.]

5 Edlestone v. Speake, 1 Show. 89; Eccleston v. Petty al. Speke, Carth.
79, S. C.; Edelen v. Hardey, 7 Har. & J. 61; Russell v. Falls, 3 Har. &
McHen. 457; Jn re Colman, 3 Curt.118. But see Newton v. Clark, 2 Curt.
820. The cause of the witnesses’ absence does not affect the rule, even
though it were at the request of the testator. Broderick v. Broderick, 1 P.
Wms. 239; Machell v. Temple, 2 Show. 288.
PART IV.] WILLS. 735

wise! In the absence of opposing evidence, it will also be
presumed, that the attestation was subscribed in the most
convenient part of the room for that purpose, taking into
consideration the kind, and the ordinary or actual position,
of the furniture therein.?

§ 679. It is proper here to add, that, after the lapse of
thirty years, with possession of the estate according to the
tenor of the will, its regular execution will be presumed,
without proof, by subscribing witnesses.2 Whether the
thirty years are to be computed from the date of the will, or
from the death of the testator, is a question upon which
learned Judges are not agreed; some holding the former,
which is now considered the better opinion, upon the ground,
that the rule is founded on the presumption that the wit-
nesses are dead, and the consequent impossibility of proving
the execution of the will;* and others holding the latter, on
the ground that it is the accompanying possession alone
which establishes the presumption of authenticity in an
ancient deed.®

§ 680. A will of lands, thus proved to have been made
with all the legal formalities, is presumed to have existed

 

1 Neil v. Neil, 1 Leigh, R. 6. ’

2 Winchelsea v. Wauchope, 3 Russ. 441. The will of a blind man is valid,
notwithstanding his blindness, if it clearly appears that no imposition was
practised upon him, and that all other legal formalities were observed. 1
Jarman on Wills, pp. 29, 30; Longchamp »v. Fisk, 2 New Rep. 415; Fin-
cham v. Edwards, 3 Curt. 63; Boyd v. Cook, 3 Leigh, R. 32; Lewis v.
LeWis, 7 S. & R. 489; In the goods of Piercy, 1 Rob. Eccl. R. 278; Ray v.
Hill, 3 Strobh. 297; [Clifton v. Murray, 7 Geo. 564.]

3 Ante, Vol. 1, §§ 21, 142-144, 570; Croughton v. Blake, 12 M. & W. 205,
208; Jackson v. Thompson, 6 Cowen, R. 178, 180; Fetherly v. Waggoner,
11 Wend. 599; Staring v. Bowen, 6 Barb S. C, R. 109.

4 Jackson v. Blanshan, 3 Johns. 292, 295, per Spencer, J. See accord-
ingly, Oldnall v. Deakin, 3 C. & P. 402: Gough v. Gough, 4 T. R. 707, 2.;
McKenire v. Frazer, 9 Ves. 5; Doe v. Woolley, 8 B. & C. 22; Ante, §310;
and Vol. 1, § 570.

5 Jackson v. Blanshan, 3 Johns. 292, 298, per Kent, C. J. and Van Nest,
J.; Shaller v. Brand, 6 Bin. 435, 439, 444, 447.
736 LAW OF EVIDENCE. [PART Iv.

until the death of the testator ;! but this presumption may
be rebuked by proof of its subsequent revocation? And this
revocation may be proved by evidence of an express act of
revocation by the testator, such as cancelling, obliterating, or
destroying the instrument, or executing some other will or
codicil, or writing of revocation ; or it may be implied from
other acts and circumstances, inconsistent with the continu-
ance of any intention that the will should stand, such as
alienation or alteration of the estate, marriage, and the birth
of issue, or other sufficient material change in the relations
and condition of the testator. The former class falls under
the Statute of Frauds, which enacts, that “no devise of
lands, tenements, or hereditaments, nor any clause thereof
shall be revocable, otherwise than by some other will or
codicil, in writing, or other writing declaring the same; or
by burning, cancelling, tearing, or obliterating the same, by
the testator himself, or in his presence, and by his directions
and consent.”3 And to such writing of revocation, the
attestation of three witnesses, at least, is required.

§ 681. The acts of express revocation are therefore of three
classes. First by a subsequent will or codicil, inconsistent
with the former, or plainly intended as a substitute for it; and
this must be executed in the manner we have already con-
sidered. If the subsequent instrument, whether it be a will
or a codicil, though it professed an intent to make a different
disposition of the whole estate, does in fact so dispose of a
part only,it is but a revocation pro tanto Secondly, by a

 

1 Jackson v. Betts, 9 Cowen, R. 208; Irish v. Smith, 8 S. & R. 573.

2 As to the revocation of wills, see 6 Cruise’s Dig. tit. 38, ch. 6, (Green-
leaf’s ed. 1857,) where the American law is stated in the notes.

3 Stat. 29 Car. 2, ch. 3, § 6. Such is in general the language of the
American statutes on this subject. 4 Kent, Comm. 514, 520, 521,”. The
difference between wills of land and of personal property, in regard to the
evidence of revocation, as well as the formalities of execution, is now admit-
ted in so few, if any, of the United States, that it is deemed inexpedient
here to advert to it.

4 Brant v. Wilson, 8 Cowen, R. 56; Harwood v. Goodright, Cowp. 87.
See also Hearle v. Hicks, 1 Cl. & Fin. 20; Henfrey v. Henfrey, 4 Moore,
P. C. Rep. 29. The republication of a former inconsistent will, is also a
PART IV.] WILLS. 737

written instrument of revocation; which, it is to be observed,
the statute does not require should be attested in the presence
of the testator, like a will; but to take effect as a revocation
only, it must contain an express declaration of an intention to
revoke. If the instrument purports to be a subsequent will,
_ and is well executed to take effect as a will, it will also -have
effect as a revocation of all former wills touching the same
matter, without any words of revocation; but if it does not
contain any testamentary disposition, then, though it is well
executed as a revocation, it will not so operate, unless such
intention is expressed Thirdly, by some act of reprobation,
spoliation, or destruction done upon the instrument, animo
revocandi. But if the act be done without such intention,?
or not in the presence of the testator, though by his direction,
it is of no force.2 It has accordingly been held, that slightly
tearing the will and throwing it on the fire, though it were
only singed,‘ or a partial burning of the paper, or tearing off

 

revocation of a subsequent will. Havard v. Davis, 2 Binn. 406. [See also
Coffin v. Otis, 11 Met. 156; Plenty v. West, 15 Eng. Law & Eq. 283; Free-
man v. Freeman, 27 Ib. 351. A determination expressed by a testator, in a
codicil to his will, to make an alteration in the will in one particular, nega-
tives by implication any intention to alter itin any other respect. Quincy
v. Rogers, 9 Cush. 291.]

1 Roberts on Frauds, 466-466 ; Onions v. Tyrer, 1 P. Wms. 843; Lim-
bery v. Mason, 2 Com. R. 451; Bethell v. Moore, 2 Dev. & Bat. 311; 1
Jarm. on Wills, 121, 122, 125, 129,156. The same principle applies to an
intended revocation by obliteration; if it be not duly attested, it has no
. effect. Ibid.; Kirk v. Kirk, 4 Russ. 435. But though the second will should

fail of taking effect, yet, if it is perfectly executed, and the failure arises
merely from some incapacity of the party for whose benefit it is made, to
take under it, the second will may still operate as a revocation of the first.
Laughton v. Atkins, 1 Pick. 535, 543.
2 Hence, if the testator were insane, the destruction of the instrument by
_ his order is no revocation. Ford v. Ford, 7 Humph. 92.

3 Onions v. Tyrer, 1 P. Wms. 343, 345; Scruby v. Fordham, 1 Add. 74;
Trevelyan v. Trevelyan, 1 Phillim. 149; Haines v. Haines, 2 Vern. 441;
Dan v. Brown, 4 Cowen, R. 490; Boudinot v. Bradford, 2 Dall. 266; 2
Yeates, 170, 8. C.; Clarke v. Scripps, 16 Jur. 783; Ante, Vol. 1,§ 263.

4 Bibb v. Thomas, 2 W. Bl. 1043; Winsor v, Pratt, 2 B. & B. 650;

5 Doe v. Harris, 6 Ad. & El. 209.
62 *
738 LAW OF EVIDENCE. [PART Iv.

a seal, though superfluous; the intention thereby to revoke
being clear, was a sufficient revocation. So, if a material
part of a devise or bequest be obliterated by the testator, it
is a sufficient revocation pro tanto, although it be merely by
drawing the pen across, and the writing be still legible?
But:if it be an obliteration of the name of a devisee or
legatee, in some parts of the will, while in other parts it is
left standing, the Court will not, ordinarily, feel warranted in
holding that the bequest is thereby revoked.? So, if the
obliteration is on the envelop only, it is not sufficient. If
an alteration or obliteration is in pencil, it may be final, or it
may be deliberative. From the nature of the act, unex-
plained, it is held to be, primé facie, deliberative, and not
final; but it will be left with the Jury to determine, upon the
collateral evidence, the actual intent with which it was made.

 

Johnson v. Brailsford, 2 Nott & McCord, 272. The mere direction to an-
other by the testator, to destroy his will, is not sufficient, unless some act of

destruction is thereupon done. Giles v. Giles, 1 Cam. & Nor. 174; Ford |

v. Ford, 7 Humph. 92. [See also Pryor v. Coggin, 17 Geo. 444.]

1 Avery v. Pixley, 4 Mass. 462. See ante, Vol.1,§ 278. In all these and
similar cases, the will being prim@ facie revoked, the burden of proof is on
the party setting up the will, to show that the act of destruction was done by
accident or mistake, or without intention to revoke the will. Case of Cook’s
Will, 8 Am. Law Journ. 353, N. S.

2 Sutton v.-Sutton, Cowp. 812; Mence v. Mence, 18 Ves, 348, 350. As
to the time when alterations are presumed to have been made, see ante, Vol.
1, § 564. The cases of Burgoyne v. Showler, 1 Rob. Eccl. R. 5, and Cooper
v. Bockett, 4 Moore, P. C. C. 419, on this point, turn on the language of the
Stat. 1 Vict. c. 26, § 21. |

3 Martins v. Gardiner, 8 Sim. 78 ; Utterton v. Utterton, 3 Ves. & Beames,
122. If the willis found in the testator’s possession, obliterated, the pre-
sumption is, that it was so done by him; and the burden of showing that it
was done otherwise lies on the party offering it for probate, or claiming
under it. Baptist Ch. v. Robbarts, 2 Barr. 110. And see Wyn v. Hever-
ingham, 1 Col. N. C. 630. Butif it has been in the possession of one ad-
versely interested, the presumption ‘does not arise. Bennett v. Sherrod, 3
Tred. 303.

4 Grantly v. Garthwaite, 2 Russ. 90.

5 Francis v. Grover, 5 Hare, 39. And see Edwards v. Astley, 1 Hagg.
Eccl. R. 498, 494; Hawkes v, Hawkes, Id. 321; Rymes v. Clarkson, 1
Phillim. Eccl. R. 25, 85; Parkin v. Bainbridge, 3 Phillim. Eccl. R. 321;
PART Iv.] WILLS. : 739

If the will is proved to have been in the testator’s possession,
and cannot afterwards be found, it will be presumed that he
destroyed it, animo revocandi; but if it is shown out of his
possession, the party asserting the revocation must show that
it came again into his custody, or was actually destroyed by
his direction.

§ 682. If the will was executed in duplicate, and the tes-
tator destroys one part, the inference generally is that he
intended to revoke the will, but the strength of the presump-
tion will depend much on the circumstances. Thus, if he
destroys the only copy in his possession, an intent to revoke
is very strongly to be presumed; but if he was possessed of
both copies and destroys but one, it is weaker; and if he
alters one and then destroys it, retaining the other entire,
the presumption has been said still to hold, though more
faintly ;? but the contrary also has been asserted? If the
will is destroyed, but a codicil is left entire, the question,
whether the destruction of the will operates as a revocation
of the codicil also, will depend much upon their contents. If
they are inseparably connected, the codicil will be held re-
voked also; but if, from the nature of its contents, it is capa-
ble of subsisting independently of the will, its validity may
not be affected.t

 

Dickenson v. Dickenson, 2 Phillim. Eccl. R. 173; Lavender v. Adams, 1
Adams, 403; Ravenscroft v. Hunter, 2 Hagg. Eccl. R. 68. The testator, to
revoke his will, must at the same time be competent to make a will, or the
act of revocation will be a nullity. Smith ». Wait, 4 Barb. S. C. R. 28;
[Rhodes v. Vinson, 9 Gill, 169; Clarke v. Scripps, 22 Eng. Law & Eq. 627.]

11 Jarman on Wills, 119, and cases there cited; Minkler v. Minkler, 14
Verm. R. 174; Helyar v. Helyar, 1 Phillim. R. 417, 421, 427, n., 430, 439,
n.; Lillie v. Lillie, 3 Hagg. Eccl. R. 184; Loxley v. Jackson, 3 Phillim. 126.
But see Jackson v. Betts, 9 Cowen, R. 208.

2 Seymour’s case, cited 1 P. Wms. 346; 2 Com: R. 453; Burtenshaw v.
Gilbert, Cowp. 49,52; Pemberton v. Pemberton, 13 Ves. 310. And see
O’Neal v. Farr, 1 Rich. 80.

3 Roberts v. Round, 3 Hagg. Eccl. R. 548.

4 Usticke v. Bawden, 2 Add. 116; Medlycot v. Assheton, Id. 229; Togart
v. Hooper, 1 Curt. 289. See Bates v. Holman, 3 Hen. & Munf. 502,
740 LAW OF EVIDENCE. [PART Iv.

§ 683. Where the latter of two inconsistent wills is subse-
quently destroyed, or otherwise revoked, by the testator, it
was formerly held, that this revived and restored the original
will to its former position, provided it remained entire. “But
this doctrine has since been greatly modified, if not wholly
abandoned, in the Ecclesiastical Courts, and the question is
now held open for decision either way, according to the cir-
cumstances.”

§ 684. In regard to implied revocations, these are said to
be founded on the reasonable presumption of an alteration
of the testator’s mind, arising from circumstances since the
making of the will, producing a change in his previous obli-
gations and duties? A subsequent marriage alone, if the
testator was a feme sole, will always have this effect, even
though she should survive her husband; for by the marriage
her will ceased to be ambulatory, and was therefore void.‘

 

1 Goodright v. Glazier, 4 Burr. 2512; Lawson v. Morrison, 2 Dall. 289;
James v. Marvin, 3 Conn. 576; Taylor v. Taylor, 2 Nott & McCord, 482.

2 Usticke v. Bawden, 2 Add. 116; James v. Cohen, 3 Curt. 770. See 4
Kent, Comm. 531, and cases there cited; and 1 Jarm. on Wills, 122, 123,
and cases in notes by Perkins; Moore v. Moore, 1 Phillim. 875, 400, 406 ;
Boudinot v. Bradford, 2 Dall. 268; Linginfetter v. Linginfetter, Hardin, R.
119; Bohanon v. Walcott, 1 How. Mis. R. 336. By Stat. 1 Vict. cv. 26, § 22,
no will, once revoked, can be revived, otherwise than by a reéxecution there-
of. Hence parol evidence of an intention to set up the prior will by cancel-
ling the second, has been rejected. Major v. Williams, 3 Curt. 432.

In New York, by Rev. Stat. Vol. 2, p.126, 3d edit., “ the destruction, can-
celling, or revocation of such second will shall not revive the first, unless it
appear by the terms of such revocation, that it was his intention to revive
and give effect to his first will,” or unless the first is afterwards republished.

34 Kent, Comm. 521-524. [Revocation of a will cannot be implied by
law from the death of the testator’s wife, and of one of his children leaving
issue ; and the birth of another child contemplated in the will; and the tes-
tator’s insanity for forty years from soon after making the will until his death :
and a fourfold increase in the value of his property, so as greatly to change
the proportion between the specific legacies given to some children and the
shares of other children who were made residuary legatees. Warner v.
Beach, 4 Gray, 162.]

41 Williams on Executors, p. 98-95; Forse & Hembling’s case, 4 Co. 20;
Hodsden v. Lloyd, 2 Bro. Ch. Cas. 544, and notes by Eden.
PART Iv. ] WILLS. 741

But the marriage of a man is not, alone, a revocation of his
will; for the common law has made sufficient provision for
the wife, by her right of dower. Nor is the birth of a child
after the making of the will, in itself, and independent of
statutory provisions, a revocation of a will made subsequent
to the marriage; for the testator is presumed to have contem-.
plated such an event. But a subsequent marriage and the
birth of a child, taken together, are held to be a revocation
of his will, whether of real or personal estate, as they amount
to such a change in his situation as to lead to a presumption
that he could not intend that the previous disposition of his
property should remain unchanged.! But this presumption
is not conclusive ; it may be repelled by intrinsic proof of cir-
cumstances showing that the will, though made previous to
the marriage, was in fact made in contemplation of both mar-
riage and the birth of issue ;? such as, a provision of any sort in

11 Jarm. on Wills, p. 107; 1 Williams on Executors, p. 95-98; Doe v.
Lancashire, 5 T. R. 58. See also Church v. Crocker, 3 Mass. 17,21; Brush
v. Wilkins, 4 Johns. Ch. R. 506. A testator, dangerously ill, and unmarried,
made a will in favor of his intended wife. Being restored to health, he
married her and had issue four children. The will was carefully preserved
and recognized by him, but never was reéxecuted. The wife and children
survived him; but it was held, that the will was revoked. Matson v. Ma-
grath, 13 Jur. 350. Prerog. C.

21 Jarman on Wills, pp. 107, 109, 110; 1 Williams on Executors, p. 94;
Fox v. Marston, 1 Curt. 494. And see Johnston v. Johnston, 1 Phillim. 447;
Gibbens v. Cross, 2 Add. 455; Talbot v. Talbot, 1 Hagg. Eccl. R. 705; Jacks
v. Henderson, 1 Desaus. R. 548, 557; Brush v. Wilkins, 4 Johns. Ch. R.
506; Yerby v. Yerby, 3 Call, R. 334. The doctrine that the presumption
is not conclusive, has been overruled, upon great consideration, in the cases
of Marston v. Roe, 8 Ad. & El. 14; and Israell v. Rodon, 2 Moore, P. C. R.
51; in the former of which the following points were resolved : —

1. Where an unmarried ‘man, without children by a former marriage, de-
vises all the estate he has at the time of making his will, and leaves no pro-
vision for any child of a future marriage, the law annexes to such will the tacit
condition, that if he afterwards marries, and has a child born of such mar-
riage, the will shall be revoked. Upon the happening, therefore, of those
two events, the will is ipso facto, revoked.

2. Evidence not amounting to proof of publication, cannot be received in
a court of law, to show that the testator intended that his will should stand
good, notwithstanding his subsequent marriage and the birth of issue; be-
.

742 LAW OF EVIDENCE. [PART Iv.

the will itself, for the future wife and children; or a provision
for children alone ;! but provision for the wife only, has been
held insufficient.2. Any other evidence of intent, to have this
effect, it seems, must amount to proof of republication of the
will, after the birth of the issue. For any other purpose than
this, parol evidence of the intentions of the testator, that his
‘will should stand unrevoked, has been held inadmissible to
control the presumption resulting from marriage and the birth
of issue?

 

we
cause these events operate as a revocation, by force of a rule of law, and in-
dependent of the testator.

3. The operation of this rule of law is not prevented by a provision in the
will, or otherwise, for the future wife only ; such provision must also extend
to the children of the marriage.

4. The provision, also, must be made by the will; the condition, annexed
to it by law, so far as relates to the existence or extent of the provision, hav-
ing reference, in its own nature, to the existing state of things at the time
the will itself was made. And it must give to the child a beneficial and not
a merely legal interest as a trustee.

Therefore it was held, that the descent of after-acquired lands upon the
child, did not prevent the operation of the rule of revocation above stated ;
especially as the child, in the case at bar, took only a legal estate in trust for
the devisee. See also, as to the conclusiveness of the presumption, Good-
title v. Otway, 2 H. Bl. 522, by Eyre, C. J.;-Doe v. Lancashire, 5 T. R. 58,
per Ld. Kenyon; Gibbons v. Caunt, 4 Ves. 848; Walker v. Walker, 2 Curt.
854. See 6 Cruise’s Dig. tit. 38, ch. 6, § 48, note, (Greenleaf’s ed.
1857.)

1 Kenebel v. Scrafton, 2 East, 580; 1 Jarman on Wills, p. 109.

2 Marston v. Roe, 8 Ad. & El. 14.

3 Ibid. In several of the United States, the effect of marriage and the
birth of a child, upon a prior will, has been definitely settled by statute.
Thus, in Rhode Island, a will is ipso facto revoked “by a marriage of the
testator subsequent to the date thereof.” R. Isl: Rev. St. 1844, p. 231. In
Connecticut, “ If, after the making of a will, a child shall be born to the tes-
tator, and no provision shall be made in the will"for such contingency, such
birth shall operate as a revocation of such will.” Conn. Rev. St. 1849, pp.
346, 347.

In New York, the enactment is more particular. “Tf, after the making
of any will, disposing of the whole estate of the testator, such testator shall
marry, and have issue of such marriage, born either in his lifetime, or after
his death, and the wife or the issue of such marriage shall_be living at the
death of the testator, such will shall be deemed revoked, unless provision shall
have been made for such issue by some settlement, or unless such issue shall
PART IV.| WILLS. 743

§ 685. The rule, that marriage and the birth of issue, ope-
rates as a revocation of the previous will, is not affected by

be provided for in the will, or in such way mentioned therein. as to show an
intention not to make such provision; amd no other evidence ‘to rebut the
presumption of such revocation shall be received.” N. Y. Rev. St. Vol. 2,
p- 124, § 35, 3d ed. In Arkansas, Indiana, and Missouri, the language of
the statutes is substantially the same as in New York. Ark. Rev. St. 1837,
ch. 157, § 7; Ind. Rév. St. 1843, ch. 30, § 8; Misso. Rev. St. 1845, ch.
185, § 7. s

In Pennsylvania, if the testator, after making his will, “shall marry or
have achild not provided for in such will, and die leaving a widow and child,
or either a widow or child, though such child be born after the death of the
father, every such person, so far as shall regard the widow or child, shall be
deemed and construed to die intestate. Dunlap’s Dig. p. 573, § 15; Coates
v. Hughes, 3 Binn. 498 ; Tomlinson v. Tomlinson, 1 Ashm. 224.

In Virginia, if the testator, having no issue then living, shall make a will,
wherein any child he may have is not provided for nor mentioned, and shall
at his death leave a child, or leave his wife pregnant of a child which shall
be born; the will “shall have no effect during the life of such after-born
child, and shall be void unless the child die, without having been married,
and before he or she shall have attained the age of twenty-one years.”
Tate’s Dig. p. 892. In New Jersey, in the like case, the will is declared
void ; without reference either to the marriage or majority of the child.
N. Jer. Rev. St. 1846, p. 368, § 20. ;

In South Carolina, a will is revoked by the subsequent marriage of the
testator, and his death, leaving issue. S. Car. Stat. at Large, Vol. 5, p. 107;
Jacks v. Henderson, 1 Desau. 548, 557.

In Georgia, the will is revoked, if the testator shall afterwards marry or
have a child born; no provision being made for either wife or child'in the
will, and no alteration being made in the will, subsequent to the marriage or
-birth of the child. Geo. Rev. St. 1845, p. 457, § 16.

In Ohio, “If the testator had no children at the time of executing his
will, but shall afterwards have a child living, or born alive after his death,
such will shall be deemed revoked ;” unless the child shall have been pro-
vided for by some settlement, or in the will, or so mentioned therein as to
show an intention not to make such provison; “and no other evidence, to
rebut the presumption of such revocation, shall be received.” Ohio Rev.
St. 1841, ch. 129, § 40.

In Louisiana, “the testament falls by the birth of legitimate children of
the testator, posterior to its date. Louis. Civil Code, art. 1698.

In all the other States, this subject is believed to have been left to the
implication of law.

Whether the birth of a child by the first wife, after the making of the
will; and after the death of the first wife, a second marriage, but no more
744 LAW OF EVIDENCE. [PART Iv.

the circumstances, that the testator was married at the time
of making the will, and survived his wife, and afterwards
married again and had issue by the second wife; but such
second marriage and the birth of issue is equally a revocation
of the will, as though it had been made while he was single.
Nor does it make any difference that the issue was posthu-
mous; nor that the testator died, without knowing that his
wife was pregnant ;! nor, that the child died in the lifetime
of the testator?

§ 686. Another case of implied revocation is that which
arises from an alteration of the estate of the devisor, after the
making of the will; it being generally considered essential to
the validity of a devise of lands, that the testator should be
seised: thereof at the making of the will, and that he should
continue so seised thereof until his decease. If, therefore, a
testator, after making his will, should by deed aliene the lands
which he had disposed of by the will, the disposition by will
thereby becomes void; and should he afterwards acquire a
new freehold estate in the same lands, such newly acquired
estate will not pass to the devisee under the will? And

 

children, is a revocation of the will,— quere. See 4 Ves. 848; Yerby v.
Yerby, 3 Call, 334; 1 Jarm. on Wills, 108. See 6 Cruise’s Dig. tit. 38,
ch. 6, §§ 45, 46, notes, (Greenleaf’s ed. 1857.) As to the effect of marriage
upon the will of a feme sole, see 6 Cruise’s Dig. tit. 38, ch. 2, § 5, note. Id.
ch. 6, § 57, note, (Greenleaf’s ed. 1857.)

1 Christopher v. Christopher, Dick. 445, cited 3 Burr. 2171, marg. Id.
2182. See supra, § 684, note, and cases there cited. In Doe v. Barford,
4M. &&. 10, the will was held not revoked, where the testator died leaving
his wife pregnant, of which fact he was ignorant. But if, as is now settled
by the cases of Marston v. Roe, and Israel v. Rodon, supra, the revocation
results from an imperative rule of law, and not from any supposed change
of intention, the propriety of that decision may well be questioned.

2 Wright v. Netherwood, 2 Salk. 593, note (a) by Evans; more fully re-
ported in 2 Phillim. 266, note (c). See also Emerson v. Boville, 1 Phillim.
342. In England it is now provided, by Stat. 7 W. 4, & 1 Vic. c. 26, § 18,
that “ every will made by a man or woman, shall be revoked by his or her
marriage,” except wills made under powers of appointment, in certain cases;
and that, “ no will shall be revoked, by any presumption of an intention on
the ground of an alteration of circumstances.”

8 See 1 Jarman on Wills, ch. 7, § 35 p. 180-148; 2 Williams on Ex-
PART Iv.] WILLS. 745

though the conveyance be for a partial, or a mistaken or un-
necessary purpose, yet if it embraces the whole estate which
is the subject of the devise or bequest, it is a total revocation.
But if it is only’a conveyance of part of the testator’s estate
or interest, as, for example, if owning the fee, or entire inter-
est, he makes a lease for years or a. mortgage, or pledges
the property, it is only a revocation pro tanto, or a gift by

 

ecutors, Part 3, b. 3, ch. 2, § 1, p. 820-827. See also 6 Cruise’s Dig.
tit. 38, ch. 6, (Greenleaf’s ed.) where the subject of revocations by an alter-
ation of the estate is more largely treated. Walton v. Walton, 7 Johns. Ch.
258.

After-acquired lands also pass by the will, if such was the intent of the
testator, by the,statutes of most of the United States. But such intent must
clearly appear on the face of the will, by the statutes of Maine, Massachu-
setts, New Hampshire, New York, Virginia, Ohio, Michigan, Wisconsin, and
Kentucky. It is inferred, from the general terms of a devise of all his estate,
by the statute of Pennsylvania, and Indiana; and also of Connecticut, un-
less apparently otherwise intended. In Vermont, the intent must appear in
the will, or,be found “ by a proper construction.” In Rhode Island, the lands
pass, if such intent “appears by the express terms of his will.” In Illinois,
and Mississippi, the statutes empower the testator to devise all the estate
which he has ‘or may have at the time of his death;” which seems im-
peratively to include after-acquired lands, if not excluded by the terms of
the will. Seé Maine Rey. St. 1840, ch. 92, § 18; Mass. Rev. St. 1836,
ch. 62, § 3; Cushing v. Aylwin, 12 Met. 169; Pray v. Waterston, Id.
662; Winchester v. Foster, 3 Cush. 366; New Hamp. Rev. St. 1842, ch.
156, §2; Verm. Rev. St. 1839, ch. 45, § 2; R. Isl. Rev. St. 1844, p. 231;
Conn. Rev. St. 1848, tit. 14, ch. 1,§ 4; Brewster v. McCall, 15 Conn. 290;
N. York Rev. St. vol. 2, p. 119; Dunlop’s Dig. LL. Pa. p. 572; Tates’s
Dig. LL. Va. p. 889; 1 Wash. 75; 8 Cranch, 69, 70; Ohio Rev. St. 1841,
ch. 129, § 48; Mich. Rev. St, 1846, ch. 68, § 3; LL. Ky. vol. 2, p. 1537,
§ 1; Roberts v. Elliott, 3 Monr. 396; Rubentien v. Barber, 6 Monr. 524;
Ind. Rev. Stat. 1843, ch. 30, § 4; Ill. Rev.*St. 1839, p. 686, § 1; Mis. Rev,
St. 1840, ch. 36, § 2; Wisconsin Rev. St. 1849, ch. 66, § 3; Toga Rev.
St. 1851, § 1278. See also Allen v. Harrison, 3 Call, 289 Walton »v.
Walton, 7 J. J. Marsh. 58; Denis v. Warder, 3 B. Monr. 173; Smith ».
Jones, 4 Ohio R. 115; Willis v. Watson, 4 Scam. 64; 4 Kent, Comm.
511-513.

In the absence of any statute, lands purchased after the date of a devise
will pass by a codicil made after their purchase ; the codicil containing no
expressions limiting the effect of the devise to lands comprised in the will,
Yarnold v. Wallis, 4 ¥.& C. 160. And see Bridge v. Yates, 14 Law Journ.
N. S. 426.

VOL. Il. 63
746 LAW OF EVIDENCE. [PART Iv.

will, subject to the lien thus created. But a subsequent
partition of lands, held in common at the time of making
‘the will, is no revocation; as it does not affect the nature or
quantity of the estate, but only the manner of enjoyment.’
Nor will an interruption of the testator’s seisin work a revoca-
tion of the will, where it is involuntary and temporary ; for if
he be disseised subsequently to making the will, and after-
wards reénters, he is restored to his original seisin, by relation
back, and the devise is not revoked?

§ 687. Even a void conveyance may sometimes operate as
a revocation of a previous devise, on the principle that it is in-
consistent with the testamentary disposition! This rule is
applied to cases where the failure of the conveyance arises
from the incapacity of the grantee, as where the husband con-
veys by deed directly to his wife, lands which he had pre-
viously devised to another ; ° and also to cases where the con-
veyance is inoperative for the want of some ceremony essen-
tial to its validity, as where it is by feoffment, but there is no
livery of seisin.6 But the rule does not apply to a conveyance
which is void at law on account of fraud or covin ; yet if the
deed is valid in law, but impeachable in equity, it will be held
in equity as a revocation.’

 

14 Kent’s Comm. 511, 512; Brydges v. Duchess of Chandos, 2 Ves. 417,
427, 428; Carter v. Thomas, 4 Greenl. 341.

21 Jarman on Wills, 134, 135, Perkins’s edit.; Risley v. Boltinglass, T.
Raym. 240; Brydges v. Duchess of Chandos, 2 Ves. 417, 429.

31 Jarman on Wills, p. 133; Goodtitle v. Otway, 1 B. & P. 576, 602;
2H. Bl. 516, S. C.; Cave v. Holford, 3 Ves. 650, 670; Attorney-General
v. Vigor, 8 Ves. 256, 282. In Pennsylvania, it seems that a testator may
devise lands of which he is disseised at the time. Hume v. McFarlane, 4
8. & R. 485.

41 Jarman on Wills, pp. 149, 152; Walton v. Walton, 7 Johns. Ch. 269;
Hodges v. Green, 4 Russ. 28.

5 Beard v. Beard, 3 Atk. 72, 73.

6 Ibid. ; 1 Jarman on Wills, p. 150.

7 Simpson v. Walker, 5 Simons, R. 1; Hawes v. Wyatt, 2 Cox, R. 263,
per Ld. Alvanley, M. R. Andsee S. C. in 8 Bro. Ch. R.'156, and notes by
Perkins.
PART IV.] WILLS. TAT

§ 688. The formal proof of a will may also be rebutted,
by evidence showing that it was obtained by fraud and im-
position practised upon the testator, or, by duress; or that
the testator was not of competent age; or, was a feme covert;
or, was not of sound and disposing mind and memory; ox,
that it was obtained by undue influence. But it is said that
undue influence is not that which is obtained by modest per-
suasion, or by arguments addressed to the understanding, or
by mere appeals to the affections; it must be an influence
obtained either by flattery, excessive importunity, or threats,
or in some other mode by which a dominion is acquired over
the will of the testator, destroying his free agency, and con-
straining him to do, against his free will, what he is unable
to refuse.!

§ 688 a. If the will is proved to be lost, it may still be ad-
mitted to probate, upon secondary evidence, as in the case of
lost deeds and other writings. And though, as we have
seen,? if the will, shown once to have existed, cannot be

 

1 Marshall’s case, 2 Barr. 388. And see Duffield v. Morris, 2 Harringt.
375; O’Neall v. Farr, 1 Rich. 80; Lide v. Lide, 2 Brev. 403; Harrison’s
ease, 1 B. Monroe, 351; Brown v. Moore, 6 Yerg. 272. Where the testa- f
tor is left free from undue influence, and at liberty to act upon his own per- |
ceptions, less mind is ordinarily requisite to make a will, than to make a |
contract of sale. But mere passive memory is not alone sufficient. He must !
retain sufficient active memory to collect in his mind, without prompting, the | ‘
particulars or elements of the business to be transacted, and to hold them in .
his mind long enough to perceive at least their more obvious relations to j
each other, and to form a rational judgment in regard to them. The ele-
ments of such a judgmént should be, the number of his children, their
deserts with reference to conduct and capacity as well as need, and what he
had done for them in the way of advancement, the amount and condition of
his property, and the like. See Converse v. Converse, Sup. Court, Vt. 849.
2 Law Rep. 516, N. S. per Redfield, J.; 6 Washb. 168, S. C.; [Zimmer-
man v. Zimmerman, 23 Penn. State R. 375; Hoshauer v. Hoshauer, 26 Ib.
404; McMahon v. Ryan, 20 Ib. 329; Parramore v. Taylor, 11 Gratt. ( Va.)
220; Roberts v. Trawick, 17 Ala. 55; Coleman v. Roberston, Ib. 84; Walker
v. Hunter, 17 Geo. 364; Nailing vr. Nailing, 2 Sneed, (Tenn.) 680; Minor
v. Thomas, 12 B. Monroe, 106; Taylor v. Wilburn, 20 Mis. 306; Stultz v.
Schaeffle, 18 Eng. Law & Eq. 576.]

2 See ante, Vol. 1, §§ 84, 509, 575; Kearns v. Kearns, 4 Harringt. 83,

3 See supra, § 681.
748 LAW OF EVIDENCE. [PART Iv.

found after the death of the testator, the presumption is that
he destroyed it, animo revocandi, yet this presumption may
be rebutted by evidence. But if it be so rebutted, yet the
contents of the will cannot be proved, unless by the clearest
and most stringent evidence.

§ 689. In regard to insanity or want of sufficient soundness
of mind, we have heretofore seen, that, though, in the probate
of a will, as the real issue is whether there is a valid will or
not, the executor is considered as holding the affirmative,?
and therefore may seem bound affirmatively to prove the
sanity of the testator; yet we have also seen, that the law
itself presumes every man to be of sane mind, until the con-
trary is shown.? The burden of proving unsoundness or
imbecility of mind in the testator, is therefore on the party
impeaching the validity of the will for this cause. But, as
has also been shown,‘ insanity or imbecility of mind, once
proved to have existed, is presumed to continue, unless it
was accidental or temporary in its nature, as, where it was
occasioned by the violence of disease. And, on the other

 

1 Davis v. Sigourney, 8 Met. 487; Davis v. Davis, 2 Addams, 223; Thorn-
ton’s case, 2 Curt. 913; Betts v. Jackson, 6 Wend. 173; Clark v. Wright, 3
Pick. 67; 1 Jarman on Wills, 119, by Perkins; Huble v. Clark, 1 Hagg.
Eccl. R. 115; Steele c. Price, 5 B. Monroe, 58; [Rhodes v. Vinson, 9 Gill,
169; Batton v. Watson, 13 Geo. 63.]

2 Ante, Vol. 1, § 77.

3 Ante, Vol. 1, § 42; Supra, tit. Insanrry, § 8373; Brooks v. Barrett, 7
Pick. 94; [Dean v. Dean, 1 Williams, (Vt.) 746; Trumbull v. Gibbons, 2
New Jersey, 117; Zimmerman v. Zimmerman, 23 Penn. State R. 375; Haw-
kins v. Grimes, 13 B. Monroe, 257. But see contra, Crowninshield v. Crown-
inshield, 2 Gray, 524, 5384, in which the decision in the case of Brooks v.
Barrett is explained and qualified. Cilley v. Cilley, 34 Maine, 162; Perkins
v. Perkins, 39 N. H. 163.]

4 Supra, tit. Insanrry, § 371. And see Vol. 1,§ 42. Evidence of prior
bodily disease, and of different intentions, previously expressed, has been
held admissible in proof of incapacity at the time of making the will. Ivish
v, Smith, 8 S. & R. 573. But moral insanity, or the perversion of the moral
feelings, not accompanied with insane delusion, which is the legal test of
insanity, is held insufficient to mvalidate a will. Frere v. Peacocke, 1 Rob.
Eccl. R. 442; [Jenckes v. Smithfield, 2 R. I. 255; Stanton v. Weatherwax,
16 Barb. 259 ; Florey v. Florey, 24 Ala. 241. Although the testator enter-
PART IV.] WILLS. 749

hand, the proof of insanity at the time of the transaction,
may be rebutted, by evidence that the act was done during
a lucid interval of reason, the burden of proving which, is
devolved on the party asserting this exception.

§ 690. In the proof of insanity, though the evidence must
relate to the time of the act in question, yet evidence of
insanity immediately before or after the time is admissible.
Suicide, committed by the testator soon after making his will
is admissible as evidence of insanity, but it is not conclusive.‘
The fact of his being under guardianship at the time, falls
under the same rule; being primd facie evidence of inca-
pacity, but open to explanation by other proof. It may here
be added, that where a devisee or legatee is party in a suit
touching the validity of a will, his declarations and admis-
sions in disparagement of the will, are competent to be given
in evidence against him; but if he is not a party to the
record, nor party in interest, it is otherwise. So the decla-

 

tains exaggerated and absurd opinions on certain subjects, this is not sufli-
cient evidence of insanity to justify the setting aside of his will, if it also ap-
pear that he has the use of his faculties, and the will itself indicates that he
was in the possession of his reasoning powers at the time of making the will.
Thompson v. Thompson, 21 Barb. 107; Newhouse v. Godwin, 17 Ib. 236;
Trumbull ». Gibbons, 2 New Jersey, 117; Denton v. Franklin, 9 B. Mon.
28; Austen v. Graham, 29 Eng. Law and Kq. 38. A belief in witchcraft is
not evidence of such insanity as would disable a person from making a will.
Addington v. Wilson, 5 Ind. (Porter,) 137.]

1 Attorney-Gen. v. Parnther, 3 Bro. Ch. R. 441; Ex parte Holyland, 11
Ves. 11; White v. Wilson, 13 Ves. 87; Cartwright v. Cartwright, 1 Phillim.
R. 100. And see 1 Williams on Executors, p. 17-30; 1 Jarman on Wills,
ch. 83; Ray’s Medical Jurisprudence of Insanity, ch. 14, § 230-246 ; [Ban-
natyne v. Bannatyne, 14 Eng. Law and Eq. 581.]

2 Attorney-Gen. v. Parnther, 3 Bro. Ch. R. 441, 443; White v. Wilson,
13 Ves. 87. :

3 Dickinson v. Barber, 9 Mass. 225.

4 Brooks v. Barrett, 7 Pick. 94.

5 Stone v. Damon, 12 Mass. 488; Breed v. Pratt, 18 Pick. 115.

6 Atkins v. Sanger, 1 Pick. 192; Phelps v. Hartwell, 1 Mass. 71; Bo-
vard v. Wallace, 4 S. & R. 499; Nussear v. Arnold, 13 8S. & R. 323, 328,
329.

63 *
750 LAW OF EVIDENCE. [PART Iv.

ration of his opinion in favor of the sanity of the testator, is
admissible against a party opposing the probate of the will
on the grourtd of his insanity The declarations of the tes-
tator himself are admissible only when they were made so
near the time of the execution of the will as to become a
part of the res geste?

§ 691. The attesting witnesses are regarded in the law as
persons placed round the testator, in order that no fraud may
be practised upon him, in the execution of the will, and to
judge of his capacity. They. must, therefore, be competent
witnesses at the time of attestation; otherwise the will is
not well executed.2 On this ground, these witnesses are
permitted to testify as to the opinions they formed of the
testator’s capacity, at the time of executing his will; though
the opinions of other persons are ordinarily inadmissible, at
least unless founded upon facts, testified by themselves or
others in the cause.*

§ 692. The foregoing requisites to the formal execution of
a valid will are all demanded, whenever the instrument is to

 

1 Ware v. Ware, 8 Greenl. 42; Atkins v. Sanger, 1 Pick. 192. But dec-
larations by a devisee, that he procured the devise to be made, are not admis-
sible for this purpose ; it not being unlawful so to do, provided there were no
fraud, imposition, or excessive importunity. Miller v. Miller, 8 S. & R. 267;
Davis v. Calvert, 5 Gill & Johns. 265.

2 Smith v. Fenner, 1 Gall. R. 170. See also, as to declarations of testa~
tors, Den v. Vancleve, 2 South. 589; Reel v. Reel, 1 Hawks, 248; Farrar
v. Ayers, 5 Pick. 404; Wadsworth v. Ruggles, 6 Pick. 63; Rambler». Tryon,
78. & R. 90; Betts v. Jackson, 6 Wend. 173.

3 Such was the opinion of Lord Camden, which he maintained in an ener-
getic protest against that of a majority of the Court, in Doe d. Hindson c.
Hersey, reported in 4 Burn, Eccl. L. 88, and in a note to Cornwell v, Isham,
1 Day, R. 41-88. His opinion is now acquiesced in as the true exposition
of the Statute of Wills. See Borgrave v. Winder, 2 Ves. 634, 636; Amory
y. Fellows, 5 Mass. 219, 229; Sears v. Dillingham, 12 Mass. 358, 361; Ant-
sey v. Dowsing, 2 Stra. 1258, 1255; Ante, Vol. 1, §§ 333, 353, 440; 1 Jar-
man on Wills, pp. 68, 64, 66.

4 Ante, Vol. 1, § 440, and cases there cited’: Hathorn ». King, 8 Mass. 371;
Dickinson v. Barber, 9 Mass. 225.
PART IV.] WILLS. 751

be proved in the more ample or solemn form; and this mode
of proof, as we have before intimated, is now generally re-
quired in the United States, the probate of the will being
ordinarily held conclusive in the Common-Law Courts, for
reasons already given. And this amount of proof by all the
attesting witnesses, if they can be had, may be demanded
by any person interested in the will

§ 693. Upon the trial of an issue of devisavit vel non, or
other issue of title to lands, in the Courts of Common Law,
in those States in which the probate of the will is not re-
garded as conclusive in respect to lands, it is necessary, in
the first place, to produce the original will, or to prove its
former existence and its subsequent loss, in order to let in
the secondary evidence of its contents And for this pur-
pose, the probate of the will, or an exemplification, is not
received as evidence, without proof ahwnaes that it is a true

copy:

§ 694. Itis ordinarily held sufficient,in the Courts of Com-
mon Law, to call one only of the subscribing witnesses, if he
can speak to all the circumstances of the attestation ; and
it is considered indispensable that he should be able, alone,

1 See 1 Williams on Executors, p. 192-200. Sears v. Dillingham, 12
Mass. 358; Chase v. Lincoln, 3 Mass. 236. In Massachusetts, a will devis-
ing land must be proved and allowed in the Probate Court, before it can be
used as evidence of title in a Court of Common Law. Shumway v. Hol-
brook, 1, Pick. 114; Laughton v. Atkins, Id. 535, 549. And for this purpose,
it may be admitted to probate, though more than eae ye have elapsed.
since the death of the testator. Ibid.

2 See ante, Vol. 1, § 557-563, 569-575; Id. § 84, note. The nature and
effect of probate in general, has already bees considered. See ante, Vol. 1,
§§ 518, 550. Also supra, § 315. The issue of devisavit vel non involves only
the questicn of the valid execution of the will; and not of its contents. Pat-
terson v. Patterson,6 S. & R. 55. In North and South Carolina, the probate
of the will is by statute made sufficient evidence of a devise. N. Car. Stat.
1837, ch. 122,§ 9. S. Car. Stat. at Large, vol. 6, p. 209.

3 Doe v. Calvert, 2 Campb. 389; Bull. N. P. 246.
752 LAW OF EVIDENCE. [PART IV.

to prove the perfect execution of the will, in order to dis-
pense with the testimony of the other witnesses, if they are
alive and within the jurisdiction! But im Chancery, a dis-
tinction is taken, in principle, between a suit by a devisee,
to establish the will against the heir, and a bill by the heir.
at law, to set aside the will for fraud, and to have it deliv-
ered up. For, in the former case, a decree in favor of the
will is final and conclusive against the heir; but in the lat-
ter, after a decree against him, dismissing the bill, his reme-
dies at law are still left open to him. It is therefore held
incumbent on the devisee, whenever he sues to establish the
will against the heir, to produce all the subscribing witnesses,
if they may be had, that the heir may have an opportunity
of cross-examining them ; but where the heir sues to set aside
the will, this degree of strictness may, under circumstances,
be dispensed with, on the part of the devisee?

§ 695. The competency of the witnesses, and the admissi-
bility of their opinions in evidence have already been consid-
ered in the preceding volume?

 

1 Longford v. Eyre, 1 P. Wms. 741; Bull. N. P. 264; Jackson v. Le
Grange, 19 Johns. 386; Dan v. Brown, 4 Cowen, R. 483; Jackson v.
Vickory, 1 Wend. 406; Jackson v. Betts, 6 Cowen, R. 877; Turnipseed v:
Hawkins, 1 McCord, 272. In Pennsylvania, two witnesses are required in
proof of every testamentary writing, whether in the general probate before
the register of wills, or upon the trial of an issue at Common Law; and
each witness must separately depose to all facts necessary to complete the
chain of evidence, so that no link may depend on the credibility of but
one. Lewis v. Maris, 1 Dall. 278; Hock v. Hock, 4 8. & R.47. And if
there are three witnesses, and the proof is fully made by two only, it is
enough, without calling the third. Jackson v. Vandyke, 1 Coxe, R. 28;
Fox v. Evans, 8 Yeates; 506. But if one or both witnesses are dead, the
will may be proved by the usual secondary evidence. Miller v. Carothers, 6
8. & R. 215.

2 Bootle v. Blundell, 19 Ves. 494; Tatham v. Wright, 2 Russ. & My. 1.
Tn the latter case, which was a bill by the heir to set aside the will, the rule
was expounded by Tindal, C. J., in the following terms: “It may be

3 Ante, Vol. 1, § 327-430, 440. As to the competency of executors and
trustees, see particularly, §§ 333, 409.
PART IV.] WILLS. 7538

taken to be generally true, that in cases where the devisee files a bill to set
up and establish the will, and an issue is directed by the Court upon the
question devisavit vel non, this Court will not decree the establishment of the
will, unless the devisee has called all the subscribing witnesses to the will,
or accounted for their absence. And there is good reason for such a general
rule. For as a decree in support of the will is final and conclusive against
the heir, against whom an injunction would be granted, if he should proceed
to disturb the possession after the decree, it is but reasonable that he should
have the opportunity of cross-examining all the witnesses to the will, before
his right of trying the title of the devisee is taken from him. In that case,
it is the dewisee who asks for the interference of this Court and he ought
not to obtain it until he has given every opportunity to the heir at law to
dispute the validity of the will. This is the ground upon which the practice
is put in the cases of Ogle v. Cook, (1 Vez. 178,) and Townsend v. Ives,
(1 Wils. 216.) But it appears clearly from the whole of the reasoning of
the Lord Chancellor in the case of Bootle v. Blundell, (1 Mer. 198; Cooper,
136,) that this rule, as a general rule, applies only to the case of a bill filed,
to establish the will, (an establishing bill, as Lord Eldon calls it in one part of
his judgment,) and an issue directed by the Court upon that bill. And even
in cases to which the rule generally applies, this Court, it would seem, under
particular circumstances, may dispense with the necessity of the three wit-
nesses being called by the plaintiff in the issue. For in Low »v. Joliffe, (1 W.
Black. 865,) where the bill was filed by the devisees under the will, and an
issue devisavit vel non was tried at bar, it appears from the report of the case,
that the subscribing witnesses to the will and codicil, who swore that the tes-
tator was utterly incapable of making a will, were called by the defendant in
the issue, and not by the plaintiff; for the reporter says, ‘to encounter this
evidence, the plaintiff’s counsel examined the friends of the testator, who
strongly deposed to his sanity ;’ and, again, the Chief Justice expressed his
opinion to be, that all the defendant’s witnesses were grossly and corruptly
perjured. And after the trial of this issue the will was established. In such
a case, to have compelled the devisee to call these witnesses, would have
been to smother the investigation of truth. Now, in the present case, the
application to this Court, is not by the devisee seeking to establish the will,
but by the heir at law, calling upon this Court to declare the will void, and
to have the same delivered up. The heir at law does not seek to try his
title by an ejectment, and apply to this Court to direct that no mortgage or
outstanding terms shall be set up against him to prevent his title from being
tried at law, but seeks to have a decree in his favor, in substance and effect
to set aside the will. This case, therefore, stands upon a ground directly
opposed to that upon which the cases above referred to rest. So far from
the heir at law being bound by a decree which the devisee seeks to obtain, it
is he who seeks to bind the devisee, and such is the form of his application,
that if he fails upon this issue, he would not be bound himself. For the
only result of a verdict in favor of the will would be, that the heir at law
would obtain no decree, and his bill would be dismissed, still leaving him
754 LAW OF EVIDENCE. [PART Iv.

open to his remedies at law. No decided case has been cited, in which the
rule has been held to apply to such a proceeding; and, certainly, neither
reason nor good sense demands that this Court should establish such a pre-
cedent.under the circumstances of this case. If the object of the Court, in
directing an issue, is to inform its own conscience by sifting the truth to the
bottom, that course should be adopted with respect to the witnesses, which,
by experience, is found best adapted to the investigation of the truth. And
that is not attained by any arbitrary rule that such witnesses must be called
by one and such by the other party, but by subjecting the witnesses to the
examination in chief of that party, whose interest it is to call him, from the
known or expected bearing of his testimony, and to compel him to undergo
the cross-examination of the adverse party, against whem his evidence is
expected to make.” See 2 Russ. & Mylne, p. 13-15,
INDEX.

° SECTION
A.
ABATEMENT, ;
plea of alien enemy in a ‘ ‘ : . I9
defective or improper service of process . . 20
misnomer 3 : a
bill not found by tycelve of the grandjory . 22
non-tenure and disclaimer . 3 ; . 23
want of parties . ‘ 5 ‘ ‘ : . 24
in partnership. : : » 2
pendency of prior suit 3 . ‘ . - 26
judgment in, when peremptory . - ores » 27
damages in ; ‘ z ‘ ; - 27
ACCORD AND SATISFACTION,
substance of this issue | . z . : - 28
what is a good accord and satisfaction A ; - 28
who is to judge of it . é : . 2a
when admissible under the peneesl issue, and when not 29
proper parties to . : - j ‘ ‘ ‘ . 80
accord alone when no bar . . - 80
accord, with tender of satisfaction, shia waditctediy . 381
when payment and acceptance. in satisfaction are both
putinissue . . : ‘ . 82
when presumed from lapse of din alone : . . 388
. (See PAYMENT.)
ACCOUNT, :
action of . : : ‘i ‘ ‘ a . . 85
between whom it lies . . - . ‘ . » 385
pleadings in . ; - oye . fey: . 86
privity necessary to support . ‘ . : . 237
material averments in . é ; : . 87
evidence under issue of plene panna: . : - 88
plea of ne unques bailiff . . ‘ ‘ ‘ - 88

auditors in . 3 . 3 . : : : . 89
756

INDEX.

ACCOUNT, continued. -

auditors in trial of issues certified by
judgment quod computet, effect of

ACCOUNT STATED,

what amounts to proof of

ACKNOWLEDGMENT OF DEBT,

ACT OF GOD,

what amounts to
effect of

what is
when it excuses .

, ADMISSION,

of signature
of seaworthiness
of marriage

ADULTERY,

nature of the evidence to establish . -
proved by evidence of proximate circumstances
general cohabitation

SECTION

389
39

127-129

440-443
440, n.

219
219

164, 165
401, n.
462

40
41
41

general conduct, creating a sus-

preto violenta .
when proved by impression and belief of witienes

when continuance of, pr esumed, after proof of one act

of wife, when birth of child evidence of
of husband, acts in proof .
of either, when proved by visit to trotdiel
by disease
when proved by confession of party
by evidence of particeps criminis
to what time the evidence must relate .
when evidence of acts not charged is admissible
proof of, upon indictment for this crime
when and what evidence of marriage is requisite .
proof of identity of parties, when requisite
evidence in defence of action for crim. con.
of collusion between husband and wife .
of passive sufferance of husband
under plea of recrimination
condonation
proof of damages
in mitigation of damages

41
42
43
44
44
44
44
45
46
47
47
. 48
49, 50
50
51
51
51
52
53, 54
55
56
INDEX. T5T

SEcTION
ADULTERY, continued, :
letters of wife when admissible for husband . : 57
general character of wife in issue ‘ ‘ : 58
(See SEDUCTION.)
AGENCY,
nature and definition of . : . é . ‘ 59
proof of, directly or indirectly . ; = 4% - 60
by deed, when necessary. . 4 61
where a corporation aggregate is principal : 62
by writing, when necessary ‘ . F 63
by testimony of the agent himself | : 63
by inference from relative situation  . 64, 64a
by habit and course of dealing . : . 65, 66
by possession of negotiable or other security . 65
by subsequent ratification . : : . 66
by long acquiescence. : : * . 67
effect of ratification, of tortious act ‘ . 4 ‘i 68
liability of principal for tortious act. : F . 68
revocation of . is . “ - ay CRs - 68a
ALLEGATIONS,
when descriptive . A : . . : : 12
ALTERATION,
in a will, when deliberative and when not . ‘ - 681
AMENDMENT, ;
of record, when allowed : ‘ ‘i ; : ll
of process, in the names of aa é ‘ . - lla
of pleadings. ‘ ; : : - 116
under recent English sidtntes ‘ , . . -lled
when not allowed . ; : : - dle
ARBITRATION AND AWARD,
modes of the submission, and remedies thereon . ‘ 69
remedy by action of debt, when preferable . . ‘ 70
proof of the submission . Z : : ; ‘ 71
when by parol . ‘ ; iy. 1 HPS 72
of the authority of the jceuphe 2 . . 73
of the execution of the award . ‘ 74
of notice, publication, and delivery of the eae 75

of demand of payment, when necessary. . 76

of performance py plaintiff . ‘ P . 77

defences to an action upon an award . ayn PRE 78

arbitrators, when and how far competent witnesses . 78
VOL. Il. 64
758 INDEX.

SECTION

ARBITRATION AND AWARD, continued.
proof of revocation of the submission . ‘ 5 ig 79
minority. of party . : Be atte . : 80
refusal of arbitrators to act. ‘ : : 80
evidence under non-assumpsit . ‘ ; ‘ ‘ 81

ASCRIPTION OF PAYMENTS . ‘ é - 529-536
ASSAULT AND BATTERY,

assault, what. , . ‘ . < ee Be 82
assault, intent material in . Sin, 28 a ‘i ji 83
battery, what . , é 5 2 r 3 3 84
intent material in . ; ‘ ; 85

or, freedom fie fault ‘ 5 85

when not necessary to be proved . ; : 87

when defence must be specially pleaded. ; ; 85°
proof of time and place, how far material . . 86
when plaintiff may waive one trespass and prove another 86
when he is bound to elect . ‘. ‘ i ‘ 86

actual battery needs not to be — . i 5 87

consequential damagesy when to be specially laid . - 88, 89
proof of ; . i 88
when not necessary to allege i 89

damages, what to be alleged, and what may be proved

without special averment : 5 . ‘ ‘ 89

' (See DamacEs.)
confessions and admissions, when admissible A 90
conviction on indictment, when evidence in a civil action 90
allegation of alia enormia, its office. » ‘ 6 91
defences in, classes of, and mode of pleading ’ ‘i 92
evidence under the general issue . 7 ‘ ‘ 93
evidence of intention, when material . 5 ‘ ‘ 94
when admissible : A : 94
necessity, when admissible 5 ‘ : 94
evidence under plea of son assault demesne . ‘i . 95
with replication of de injuriad . 95
with replication in justification 95
when pleaded with the general issue 95
replication of de injurté . . 7 96
plea of moderate castigavit . : 97
molliter manus imposutt ‘i 98

justification of act done to preserve the
peace . ‘ ; ; : 99, 100
INDEX. 759

ASSUMPSIT,

SECTION
when implied . . sw weed
when not . : : - 1038

when plaintiff must dedlans on ihe special saved » 104
when plaintiff may declare on common counts only . 104

form of common counts. ‘ a : ; . 105, 2.
proof of the consideration . . ‘ é : - 105

conditions precedent . 3 , » 105

other material facts, under the general issue 106

damages . 5 fa ; ‘ : - 106
proof of request ; ‘ ¢ : - 107, 108
moral obligation, when eniifdient- ‘ : : - 107
promise, when implied : 3 3 - ; - 108
from tortious conversion . . : é - - 108, 2.
privity, what is sufficient . . i : a - 109

parties, want of proper, when fatal. : . - 110
proof of particular capacity of plaintiff . - 110, 129

unlawfulness of contract, when fatal . : . - MA
count for money lent, proof of . ‘ : = - 112
money paid i : : : . - 118

when defendant’s order to
pay must be proved . 114
what payments are deemed
officious é 114
when contribution may te
had . ‘ . » 115
under a judgment . » 116
count for money had and received, proof of . - 117,118
when delivered in
trust . ‘e » ‘119
count for money had and received, when obtained by

wrong . . - 120,12 1
count for money ‘had st osived: hen paid upon a

forged security  . a - 122
count for money had and recoils when aad arpa a

mistake of facts or of law ; e - 128
count for money had and received, when paid a upon a

consideration which has failed : : - 124
count for money had and received, when riven an

agreement rescinded : 5 - 124

count for money had and received bg siden ition for 125
760 INDEX.

ASSUMPSIT, continued.

SECTION

count upon an account stated, proof of 126, 127, 128, 129
. 13864

for work and labor. e : :
pleas by defendant in abatement, of misnomer .
coverture

130
130

want of parties 131, 132

partnership . 134
replication to plea of want of parties . . . 133
when nolle prosequi may be entered . ‘6 133
replication of infancy, when bad . 133
general issue, what may generally be shown under 135
what matters in discharge may be shown
under. . . r - 1386
when failure of coudensean may be
shown under . . . < 136
ATTORNEYS,
actions by, in general . ‘ F . 7 138
actions for fees, evidence in . 139
by partners . . . 140
retainer, effect of ‘ 141, 142
conduct of business by . . ‘ . 142
extent of their undertaking, and liability . » 144,145
defences to action by, for fees. 3 148
when negligence may be shown. 143
what damages recoverable against . . . 146
when amenable to summary jurisdiction - 147
‘actions against for misconduct causing loss of debt 148
loss of title 149
AUTHORITY,
when it needs not be proved . 316, 2.
B.
BANKER’S CHECKS,
presentment of . ‘ . ‘ 4 ‘1 , . 1954
BASTARDY,
who are bastards 3 : Z 2 ‘ - 150
adulterine, how proved . ‘ 3 5 . 150, 2.
when parents are competent witnesses 151
period of gestation . F ey 152
may be shown by proving aanriave void 153
parents divorced . - 1538
INDEX.

BASTARDY, continued.

may not be shown by proving marriage souables
when legitimacy will be presumed.

T61

BILLS OF EXCHANGE AND PROMISSORY NOTES,

a:

~

by what law governed ‘ . . : .
varieties of liability and remedies upon .
material allegations in actions upon. ‘

must be pleaded according to their legal effect

forms of declarations upon . . i

existence of the instrument, proof of . . .
when lost

SECTION
. 158
153
153d

. 154
. 155
. 14,15
. 155, 2
156
156

when made by partner 167

what further must be shown under the general issue 156
signature of the instrument, proof of . - 158, 159, 162
when dispensed with . 159

identity of the instrument, what is descriptive of . 160

of parties to the instrument, proof of 158, 160

currency, when value of to be proved 160
usances, when to be proved ; 7 160
acceptance, when not necessary to be noel 160

(2.) proof that defendant is a party to the instrument . 161
by his acceptance 161

by his promise to accept
a non-existing bill 161, n.
proof that defendant is a party by testimony of other

parties, when

(3.) plaintiff’s interest, or title to sue, must be aed
when admitted by acts

of defendant

161
163

164

limitation of such ad-

missions

admission of procuration, what is

of indorsements, what is 5
indorsements, what must be alleged and proved .
partnership, when to be proved .
indorsement in blank, effect of . . . .
action by drawer v. acceptor, evidence in

indorser v. acceptor

accommodation acceptor v. drawer
other actions founded on return of bill, evidence in
consideration, when impeachable : .

64*

165
164
165
166
167
- 168
» 169
. 169
- 170
169
171-173
762 INDEX.

SECTION

BILLS OF EXCHANGE, &c., continued.
(4.) plaintiff must prove breach of contract by defendant . 174
presentment, when . 174-176, 1864

presentment, when not excused . . 7 : « 1
at what time to be made é 178, 179, 181
at what place ‘i i . 180, 1804
when provable by sities : 5 . 182
protest, when necessary to be proved . . ‘ . 183
when want of excused . ‘ ‘ z 184, 196
when not necessary ‘ a : 2 - 185
dishonor, notice of, necessary. , . 186
due diligence in a mbced question. 186

form of notice, and by whom to be
given , a . . 186

when to be given . . : 186, 187
when sent by post F : - 187
when plaintiff must prove that it

was received . : . . 187
by agent or banker ; . - 1874
when agent or banker treated as

holder. . . . 1874
where parties reside in the same town 188
variance in what . i ; . 189
when waived . i - 190,190
when not. 5 : » 190

knowledge of the fact, sutlicvent . 190, 2.
probability of the fact, not . - 190, 2.

by letter, how proved . - 191, 193
notice to produce . 7 - 191,192
to what place to be sent . » 194
want of notice of, when excused . . 195,196

in case of banker’s
checks . . 1954
excuse need not be averred 197

defences to actions on . ’ ; - 198-202
by sniendiing consideration . - 199
by other equities between original

parties . é é - 200
by matter in discharge of oe q » 201

of other parties . - 201
INDEX. 763

SECTION

BILLS OF EXCHANGE, &c., continued.
defences by matter in discharge of parties collaterally
liable. . . ‘ i fi . . 202

by new agreement . 202
competency of parties to, as witnesses . . . +203
drawer . a 2 . 203

partner . : ‘ : 203

maker . : . : 204

acceptor or drawee F 205

payee . ‘ . : 206

indorser 5 . ‘ 207

Cc.
CARRIERS,

liability of, and remedies against : z F ‘ 208
forms of declaration aren . : . 210, .

(1.) contract, proof of . j ‘ ‘ ‘ - * 209
when it must be proved in ¢ort . . : 214

termint, and variance F ; F : 209

proper parties to the suit . : . : 212

common, proof of contract supplied by law é . 210
who are such . . . : S : 211

(2:) delivery of goods, proof of . . . . 2 213
(8.) loss or non-delivery of goods, proof of —. : 2138
when plaintiff’s oath admissible . é ° 213

proof of joint interest in assumpsit . ; : : 214
intort . : “ : 214

whether carrier may restrict his own liability . : 215
notice by, burden of proving . aietes a ‘ 216
when by advertisement, proof of . . : 216

when several and different notices . . : 217

effect of, how avoided . : . . é 218

waiver of 7 . 218
negligence, &c., on whom is ihe’ burden ot prot : 218
private, excused by accident . : ; . ; 219
common, what excuses. ‘ ‘ 5 : 219
when excused by act of plaintiff : . . ‘ 220

of passengers, liabilities of as to persons . . . 221

as to luggage . : - 221,n.
liable only for negligence . . ji 222
764 INDEX.

SECTION
CARRIERS, continued.
of passengers, burden of proofon . ‘i 222
breaking of coach il proot of
negligence. . . 222
when not bound to receive or ane > 222 a
CASE, acTION UPON THE,
distinction between trespass and case ; ‘ ; 224
lies for injuries to relative rights : . . : 225
when trespass or case lies ‘ 225

whether case lies for injuries to sivotate satis with fred 226
proof of joint interest in plaintiffas . , . ; 227

joint liability in defendants, when ‘ i 228
allegation of time, when material to be proved . . 229
malice and negligence, proof of —. : 230
misrepresentation i é . 2304
for injury to real property , i z ‘ - 2306
general issue, evidence under . 2 : 231
* damage resulting from want of due care by planet . 231 a
special pleas, when necessary . . : : . 232
liability of master for servant . . é i - 2324
CONSIDERATION,
when divisible . ; . : : ‘ : 136
CONTRACT,
entire, when . . A : ‘ . - 136 a, 261 a
COPYRIGHT : 3 ‘i ; F . a 510-515
(See Parents.)
COVENANT,
declarations in - 239, 2, 240 n., 242, n., 248, n., 245, n,
no general issue in . , ‘ . . 233
proof of the instrument . : ‘ : 234
performance of condition piecedent i ‘ 235
breach of covenant . ‘ e 236, 237
of indemnity . : 236
breach to be'substantially proved 5 . : 237
notice, when necessary. . ‘ : . : 238
against defendant, as assignee of covenantor . 5 239
defences by 239
by plaintiff, as assignee, evidence by s \ 5 240
real, what are such . . ‘ ‘ ‘ : ‘; 240
who may sue thereon ‘ ‘ ‘ : i 240

of seisin, what is a breach of . - é ‘ 5 241
765

INDEX.
SECTION
COVENANT, continued.
of freedom from incumbrance, breach of 242
for quiet enjoyment, breach of . 243
of warranty, breach of 244
against assigning and underletting, preadh of 245
to repair, breach of . : 245 a
plea of non est factum, effect of 245
evidence under 246
plea of performance, who must prove 247
COUNT, '
when several and when not . 105, 2.
CRIMINAL CONVERSATION,
(See ADULTERY, MARRIAGE.)
CUSTOM AND USAGE,
what 248
its difference from Presenipiten 0a Usage 248
local, who is competent to prove 249
usage, who is competent to prove 249
local, how proved 250
usage, what and how proved . 251
and usage must both be proved by evidence of facts
only 252
by hae seinen 252
usage founded on foreign laws, how proved 252
proof of, one witness not enough 252
(See PRESCRIPTION.)
D.
DAMAGES,
what, and when given 253
vindictive or exemplary . . 258, n.
general and special, defined 254
to be assessed by the Jury 255
nominal, when plaintiff may take judgment for . 254, 255

the natural and proximate cause of the wrongful act 256, 635

liquidated, by whom to be proved ‘ 257
what are such , . s 5 258, 259

proof of, not confined to number and value alleged 260
may be assessed beyond alleged value 260
not beyond ad damnum 260
766 INDEX.

* SEcTION
DAMAGES, continued.
measure of, general rule . . . - 253, 2, 261
when no particular sum or quantity

is proved . é ‘ 7 . . 255
on bills of exchange ‘ é : ‘ 261
on contracts to deliver goods . a ‘ 261
to replace stock . : ; 261
to convey land. ‘ . 261, 2.
for labor and service . 261, 261 a@
where not prevented by plaintiff . . 261
on breach of warranty of goods : . 262
in debt on bond. - 3 3 263

whether beyond the penalty end 4 in-
terest : . . 3 . 257, n., 263
on covenants of title - : ‘ - 264

of warranty ‘ i : 264
ordinarily measured by the actual injury . - 2538, n., 265

exceptions to this rule. : . : ‘ ; 265
‘aggravated and mitigated, when . . «. . 266
in actions for injuries to the person . . : é 267
in actions for injuries to the reputation . ‘ 267, 269
proof of, how restricted . . . . . i 268
to what time computed. : . . : . 2684
when costs may be included. : : ‘ . 268 4
prospective, when allowed ‘ : é : - 2686
when and how far affected by the character and rank
of the parties : : . 269
whether affected by intention of the nant: 230 a, 270, 272
when dependent wholly on the intention . . . 271
when increased by bad intention : : . é 272
evidence in mitigation of . . ‘i 272, 458, 625
when excluded ‘ . : 274
in aggravation of . . ; : : 273
in case for nuisance ‘i : a j . ‘ 474
for seduction . . : ‘ zs ; * . O77 4a
in slander . . ‘ . : 5 ‘ » * 275
in trespass. . : ; : * » 6354
in trover : : . § , ‘ 276, 649
in violation of patent : ; F . : . 469, 2.
for waste ‘ : ‘ ; : ; 650

against several for a sous daft ‘ ‘ ; : . 277

4
INDEX. T6T
° SECTION
DAMAGES, continued.
severally assessed, election de melioribus damnis. . 277
alia enormia, evidence under this allegation . ; 278
DATE,
when essential to ie proved. . . ; - 12, 18, 160
when reckoned inclusive . ‘ i ; é - 489, n.
DEATH,

amount of proof required in different cases in general 278 a
proof of, in what cases usually required . é - 27856

direct proof of i 3 F - , 5 . 278 ¢
indirect proof : < : . , : . 278d
by documents ~ ee oe > w  2T8e

identity of persons, proof of .. . . . . 28a
indirect oral evidence of . . é : : . 278 e
burden. of proof . : : : : ‘ . 278 e
presumption of life . é z . . ‘ - 278¢e
of death ‘ : : : é . 278 f

diligent inquiry necessary ; 5 : : . 278 f
proof of, by family conduct . : : : . 2789
by reputation in the. family Ben . 2789

amount of proof required in actions for possession of
-the realty. . : 5 ‘ ‘ : . - 278h

personalty . . . : ; ‘ . 278A
DEBT,

when it lies. . . . . . ‘ 3 279

forms of declarations in . - ‘ é ‘ é 279

plea of non est factum, evidence under. : 279, 292

nil debet ‘i : 280, 281, 281 a, 282, 287

nil habuit in tenementis so ss : ‘ 281

statute of limitations . . . : ‘ 282

former recovery . 5 : ‘ 282

for a penalty, proof in support of a : -, 228, 284

proof in defence . : ; 3: 285

for bribery at an election, proof in support of : . 286

proof in defence : ‘ 287

for an escape . ‘ : , i , 288

assignment of breaches on eobed , . ‘ : 289

plea of soluit ad diem, evidence under . - - 290, 291

solvit post diem. 3 7 290, 291

parol proof of ; . - 21a

DEDICATION, (See Way.)
768 INDEX.

SECTION
DEED,
how far put in issue by plea of non est factum . . 293
proof of, in what it consists : . 5 : . 294
how proved . : 7 . . ‘ ; . 294

proof of signing ‘i ; : : ° . . 295
sealing : : ‘ . : : . 296
delivery . 5 . . . : F 297
foreign authentication . 7 . . ; 298

acknowledgment ‘i 5 298
plea of non est factum, what may be ane sinaee by
defendant . F 300

Burden of ‘roof ee on ‘plaintiff 300
on defendant 300

DEMAND,
when necessary to be proved. : . . 174-176
DEVISE, (See WILLS.) ;

DRUNKENNESS . 5 5 a | - 171, n., 300, 3874
DURESS,
what, . : . ‘ . _ ‘i ‘ ‘ 301
per minas 5 ‘i . . . : . - -801
of imprisonment 5 . . ‘i ‘ . . 302
money paid by . . ‘ . ‘ . . 121

E.
EJECTMENT,
nature of, and ground of recovery in F a 7 803
points to be proved by plaintiff . . . 304

title of plaintiff, when not necessary to be proved . 305
who are estopped to deny it . . 805

proof of by payment of rent . : 306

when both parties claim under the same 307

possession of lands by defendant, proof of . : 308
title of heir or devisee, proof of pedigree and descent 309
seisin of ancestor 310, 311

entry by whom made 312

title of remainder-man, &c., proof of . . ‘ ‘ 313
legatee of term of years, proof of . . * 313
executor or administrator, proof of ; . 315
guardian. , ; ; . 315
purchaser under sheriff ‘5 gales : ; : 316

title by a joint demise. . . : ; . 317
INDEX, 769

SECTION
EJECTMENT, continued.
title by several demises . . : éj - 9817
when proved to be part only of the lind : ; - 817
ouster of one tenant incommon, by another. - 3818
by landlord against tenant, plaintiff must prove tenancy
determined & : : 3 ‘ ‘ » 819
by lapse of time . : - 820
by notice to quit. : . 821
service of notice . » 822,324
form of notice. : - 828
notice, when not necessary . 3825
when waived . . 825
by forfeiture ¢ ; . 826 .
for non-payment of
rent 5 - 826
for other breach 327
for underletting 328
between mortgagee and mortgagor . 3 . » 3829
defence of mortgagor by proof of payment : - 830
usury . j ; . 830
what may be shown in defence of this action . ‘ » 831
damages in . : . 882
trespass for mesne pitty plaintiff n must prove the
judgment . . . : . 833
debate ale 3 ‘ . 833
his own possession . : . 8384
defendant’s occupancy : » 885
what damages plaintiff may recover. ; - 886
lasting improvements, remedy of defendant for ; - 837
other defences in . : ; ; : a : - 837
(See Reat AcTIONs.)
EXECUTORS AND ADMINISTRATORS,
profert by, of letters testamentary . é . z - 838
character of, how put in issue : ; ; ‘ - 888
how controverted ‘ ‘ ‘ ‘ . 844
when they must sue as such. : . : ‘ - 838
character of, how proved when plaintiff . ; : . 889
by probate . . . 339, 343, n.
how rebutted . - 889
by record ‘i ‘ - 840, 841

administrator de bonis non, how proved . 841
VOL. II. 65
770 INDEX.

SEcTIOoN
EXECUTORS, &c., continued.
plea of Statute of Limitations, when avoided by
new promise to. ‘i a , - . - 3842
de son tort, when liable as such . 7 ‘ : . 848
to what extent . . 345
de son tort, retainer by. . : ‘ . . 850
character of, burden of proving . é é < . 3844
plea of ne ungues executor, consequence of . ; - 845
, plene administravit, proof of assets under . 3846

what is evidence of assets . 347
devastatit 3474
how rebutted 348
when this plea is proper 348, n.

plea of plene administravit, evidence under 5 . 3850
retainer, when it may be claimed ° : . 849, 850
outstanding judgments, plea of . < 5 : . 98d1
debts of higher nature, plea of . é ‘ ‘ . 851
admissions by one of several executors, effect of . . 3852
(See TROVER.)
EXTORTION, '
money obtained by. . j . . ‘ - 121
H.
HEIR,
proof of heirship ‘ : ‘ é : : . 854
death of ancestor . . ‘ ‘ ‘ - 855
liability of . : ‘ . : ‘ . 856-358
plea of riens per descent . ‘ ‘ ‘i ‘ . 859
proof of assets ‘ 5 ‘ : : . 860
by lands in a foreign State . . . 861
I.
IDENTITY,
of person, proof of, when requisite . . - 50,278 d
of close. ’ . : . ; F . - 625
INFANCY,
burden of proof of . : . ; - : - 862
evidence of . ; ‘ . : ; . - 863

plea of, how avoided . 5 e  % : i - 864
INDEX. TTL

SEcTION
INFANCY, continued.
necessaries, what . 5 ‘ - 865, 366
may consist of money lent " ‘ - 865, 2.
evidence of, how rebutted . . 866, 367
new promise by infant . : ‘ ‘ - 867
no defence in actions ex delicto . ; : : - 868
INSANITY,
when it is a good defence, or not, in civil cases . 369, 370
in criminal cases =. S872
how proved 7 : Fi ‘ ‘ * s 371, 689
what constitutes it . : ‘ : : - 873
from drunkenness, when it is a défonive 5 . . 874
INSURANCE,
declaration on marine policy . : é . - 376
proof (1.) of the policy . ‘ é ‘ a - 877
(2.) interest. . 5 ‘ - 878-381
legal or éqnitable Gi 3 ‘ . 879
proof of interest in the goods. : : - 880
under open or valued polity . . 381
(8.) inception of risk ; ‘ ‘ . . 3882
(4.) performance of conditions . . : 383
compliance with warranties ; . 388, 384
sailing with convoy . : ; ; . 884
(5.) loss . : : : . a . 885-394
proximate cause of . . . . - 3887
by perils of the sea . ‘ . : - 887
by perils of rivers. . ¢ : - 887, n.
by capture. ir ue . - 887, 388
when voyage licensed . ‘ - 889
by barratry . j : 7 5 - 890
by stranding . : 7 . : - 891
total or partial is 2 . - 3892

proved by iporeck ‘ : - 3892
by abandonment accepted - 892
amount of, proved by adjustment . - 893
preliminary proof of . , . - 3894
matters in defence, viz: 3

misrepresentation and conceal-
ment ‘ “ : - 896, 397
burden of proof . F - 898
breach of warranties . - 399-401

‘
772 INDEX.

Sxcrion
INSURANCE, continued.
matters in defence, viz. :
unseaworthiness : . 400, 401
illegality of voyage . . . 402
want of documents . é . 402
want of neutrality . 7 . 402
deviation . ; ‘ * » 403
against fire, declaration in . , i ‘ ‘ - 404
proof of loss. ‘ 405
by lightning without aoniustion 405, n.
gross negligence of assured . 405, 2.
performance of conditions . . 406
rule of estimation of damages . 5 . 407
defences in . : ‘i ‘ ‘ . 408
upon lives. : : . : : : : . 409
nature of interest insurable e . 409
ISSUE,
what 3
how formed 3,4
general and special ; 5
: general, in assumpsit, its extent . 6-8
in English practice 8
in American practice 8

J.
JUDGE AND JURY,
their respective provinces 28 a, 186, 442, 2., 490, 504, ».,
605, 662

L.

LAW AND FACT, (See JupeE anp Jury.)
LIBEL AND SLANDER,
to be defined by the Court and tried by the me » 411

declarations in . ; : . ; - 410
points of plaintiff’s proof . . . ‘ ; - 410
special character . . . 412

other prefatory allegations . 413

publication of words. - 414

by defendant 415

by his agents 415, 416
INDEX. 773

SECTION

LIBEL AND SLANDER, continued.
points of plaintiff’s proof, publication of, when printed 416
‘ by letters . 416

colloguium and innuendoes . - A17
malice . : . 418, 419, 422

damages. 4 . g - 420

defence, under the general issue . ; . 421-425
when the truth may be given in evidence . 421

words spoken in discharge of duty : » 421

in confidence . é ; - 421

in honest belief of their truth . 421
whole libel to be read . : _ . » 423

damages, evidence in mitigation of . : . 424, 425

evidence of character, when admissible - 426

justification of, degree of proof required . ; . 426

charging violation of professional confidence ; - 427

slander of title ‘ . ‘ : . - 428

other special damages. ; : : - 428

course of trial . 4 ‘ : 4 j : . 429

LICENSE,

proof of . ‘ ‘ : : 3 ‘ < 627, 6438
LIMITAFIONS,

in bar of rights of entry . ; : . A . 4380

of action . . : : : - 431

avoided by suing out of process . ; ‘ F - 481

new suit, after abatement . : 3 - 482

time, from period or act computed . - 488-485

not arrested when once begun to run . : - 439

avoided by showing absence, out of the jurisdiction . 437
when in case of joint liabilities . 4388

how rebutted - 439
new promise 5 si - 440-445
acknowledgment of indebtment . 440

what amounts to 441-445
when not admissible 446

merchants’ accounts, what . - A447
fraud in defendant . ‘ - 448
M.
MALICIOUS PROSECUTION,
‘nature of, and what amounts to . 3 : : > 449

65 *

4
7174 INDEX.

SECTION
MALICIOUS PROSECUTION, continued.
whether it lies against a corporation . . 453, n.
action for, proofs by plaintiff 450-456
proof of the prosecution . 450, 451
prosecution ended 452
malice and want of probable
cause 4538
burden of proof of 454
probable cause, what is 454, 455
proof of, by defendant . 457
damages : 456
defence in this action . 457
by proof of plaintiff’s taal character, when 458
advice of counsel . 459
MARRIAGE,
nature of the contract of, and when valid 460
modes of proof of 461
by reputation 462
by admissions of parties 462
by conduct 462
by written document . 463°
how rebutted 464
MASTER AND SERVANT,
master, when liable : - 2324
(See Cas.)
MONEY COUNTS,
what evidence is admissible under . - 112-125, 129 a
N.
NUISANCE,
what is 465-469
to dwelling house 466
to lands ‘ 467
to incorporeal henealamants j ‘ 468
to reversionary interests 469
action for, is local 470
proofs by plaintiff 470- ATA
possession, or title 471
injury by defendant 472

when lessor liable for

472
INDEX. 775

SEOTION
NUISANCE, continued.
injury, when by plaintiff’s own fault —. r 478
when by mutual faults . ij . 478
when by defendant’s own fault . ‘ 473
proximate cause of . : 7 . 473
damages . . é : ‘ 474
defences to this action. ; . a 5, 476
by proof of dinudoumment of right
by plaintiff . : . . 476
O.
OBLITERATION, (See ALTERATION.)
P.
PARTNERSHIP,
evidence of . : . ‘ : : 477-479
in actions by padihionee : ‘ . F 478
in defence . i . 4 : ; 480
as between the partners ; . . ; 481
as against them . : . ; . 482-484
must extend to all F ‘ 483
by common report. : ; : é 483
, by admissions of the a ; : : 484
how rebutted . a : 485
when the partners are connote inca . 486
PATENTS,
remedy for infringement of right . 5 jr ; 487
* declaration for 7 3 : 7 . 3 - 487, n.
proofs on plaintiff’s part . : ‘ : é 487-498
letters-patent . . * ‘ 488
specification . : i : 488
how expounded . : : 489
sufficiency of . : ‘ é 490
assignment . i ‘ ‘ 491
invention his own i - 492
invention new, and reduced is
practice ‘ : 493, 495

sisetil ‘ 493, 495
776 INDEX.

SECTION

PATENTS, continued.
proofs on plaintiff’s part
infringement ‘ 5 496, 497, 506

damages . ‘ ‘ - 5 496
identity of machines . ‘ 498, 506
purchaser a competent witness. 499
defences, and special notices of 3 A : : 500

by evidence of previous use i 501, 501 a, 502
in a foreign country 502

subsequent patent ‘ ‘ 503

duplicity of patent . ; 503

unlawfulness kg : 503

injurious tendency ; 503, 505

abandonment by patentee . 504

dedication to public. : 504

defective specification . : 505

disclaimer, when it may be made. ‘ a ‘ 507

other violators of, competent witnesses . ; : 508

adverse patentees, competent witnesses . , : 508

COPYRIGHT, action for infringing . j . ‘ 510

proofs by plaintiff . ‘ : ‘ 511, 514

entry of copyright : 511

authorship .°  . ; 512

assignment . : : 513

infringement ‘ 2 514

defences in this action . : ‘ » °515

when injunction may issue. ‘ * 515
PAYMENT,

what is . . : ‘ 3 ‘ : A , 516

when it must be pleaded . ‘ ‘ ‘ A ‘ 516

by whom to be proved. : ; ‘ ‘ -° 516

receipt given, when to be produced . : ‘ ‘ 517

proof of, when made to agent or attorney . ; : 518

to order . : - - ‘ 518

by higher security given . ‘ ‘ . 7 F 519

by debtor’s own security . 4 ‘ i i 519, 520

by novation, what . 7 ‘ A 3 : . 519

by debtor’s check . ‘ : “ ‘ 3 ‘i 520

by negotiable note or bill - j ‘ ‘ 2 520

by note not negotiable . . ; é ‘ : 521

by bank-notes . . ‘i . 5 ‘ 3 5 522
INDEX.

PAYMENT, continued.

by note or bill of a third person

by foreclosure of mortgage
by legacy
by remittance by oe

by delivery of specific articles .

by any collateral thing

presumption of, from security taken a9
from lapse of time
from course of trade
from habit of dealing

ascription, or appropriation of payments

J

PRELIMINARY OBSERVATIONS,

PRESCRIPTION,
what

lost grant, when prodemed
how proved

kinds of

what may not be elatined be
plea of, how maintained

customary right, what

plea of, what proof will support it

lost grant, proof of

Tl

SECTION

523

524

524

525

526

526

627

528

528

528
'529- 536
529, 530
531

532

532 a
533

534

by the debtor
by creditor
when to be made
when it may be changed
by law
where there is a surety
where one debt is barred

by lapse of time 535
where one security is void 535
when ratably made 536
1-18

537, 538
538, 539
546
540
541
543
542
aid, 545
544, 545
546

or defeat it

(See Custom.)

PRESUMPTION,

of amount and quantity

of possession of letters ee

of payment

of knowledge of the contents a a will
of alteration of will by testator

129 4

844

32, 33, 527, 528
. 675, 2.

681
178 INDEX.

PRESUMPTION, continued.

of time when alteration made .

of sanity
‘PRINCIPAL AND AGENT,

(See AGENCY.)

PRIVILEGED COMMUNICATIONS,
PROBATE OF WILLS,

mode of proof of

effect of .
PUBLICATION,

of will, what, and when necessary

R.

REAL ACTIONS,
various forms of, in the United States
of remedies for mesne profits
remedies for betterments .
writ of right, evidence in
seisin of plaintiff, proof of
plea of nul disse’sin, evidence under
disseisin, how proved
how rebutted : .
lasting improvements or betterments, what
(See EsEcTMENT.)
RECOUPMENT,
when allowed .
REPLEVIN,
when it lies .

what ‘title plaintiff mill prove 3 a .

plea of non cepit, evidence under
property in defendant . . .
avowry or cognizance

pleas of non demisté and non ieité proof uiidan

nil habuit in tenementis

riens tn arrear

cognizance as bailiff

avowry for damage-feasant .

tender i
competency of witnesses . .

SECTION

- 681, 2.
689

421

339, 848, n.
672

675

547
548
549-551
554
555
556
557
558
559

1386

560
561
562
563
564
565
565
566
567
568
569
570
INDEX. 779

SEcTION

REVOCATION,
of authority or agency. ‘ : é “ . 684
of submission . * é é ; ‘ : » 19
ofwill + « « « % # « =  SBGsEB7

S.
SEDUCTION,

action for, what plaintiff must prove . ¢ : 571-577
declaration in . : . i‘ : . d71, 2.
proof of relation of serwant . ‘ . . 2 572
hiring not necessary . . . a : 573
what acts of service sufficient : . 573

when absence from plaintiff’s house is not a bay 573
isa bar . 574

service must have existed at time of seduction 575
when service will be presumed. 5 i 576
will not be presumed : , 576

fact of seduction . . é : : , 577

damages. : 5 ; . . . d774
general issue, evidence under . ee ‘ 578
damages, grounds, and proof of ‘ ‘ 5 : 579
(See ADULTERY.)
SHERIFF,

is identified with his under-officers . : . . 580
action against . : 7 . . 581
for iniaepaaned of deputy ‘ : 582

official character of deputy, when and lox
proved . ‘ é 582

declarations of deputy, vitien siinisatble 583
declarations of creditor, when admissible 583
for not serving process, plaintiff’s proofs in 584
defences in . 585

for taking insufficient pledges, plaintiff’s
proofs in . . : 586
défenwes in ‘ 586

for not paying over money, plaintiff’s
proofs in ee . : : 587
defences in . 588
his return, when evidence for him . 585
780 INDEX.

SECTION
SHERIFF, continued.
action against for an escape, plaintiff’s proofs in 589, 590
defencesin . . 591
for false return, plaintiff’s rooted in. 592
defences in ; j 593
how rebutted 4 : 594
for refusing bail =. ww wC
for extortion . : : 596
for taking goods of plaintif? ‘ . 597
competency of witnesses in these actions . ‘ ‘ 598
damages ‘ ‘ , i a . 7 : 599
SIGNATURE, :
proof of . ; . A ‘ ‘ ; . 71, 164, 165
by initials, when good. 5 ‘ ; 5‘ - 158, 2.
of wills . . : é i é é F ‘ 674
SLANDER,
(See LisEL AND’ SLANDER.)
SUNDAY,
contracts made on, void . ‘ is z 5 - 199, x.
SUSPICION,
when it may be shown in mitigation of damages 272, 458
T.
TENDER,
nature and effect of ‘ ; : ; : , 600
of money, plea of, how proved . ‘ . : . 601
in bank-notes or checks. , : ‘ 601
production of the money necessary . ‘ . . 602
when dispensed with . ‘ 603
of a greater sum, when good . . : . ; 604
must be absolute. , é ‘ ‘ E : 605
may be under protest . A : ; : - 605, n.
when there are several debts. : 3 : : 605
several creditors . ; 5 ; 605
to whom to be made ‘ ‘ ‘ : . ; 606
at what time to be made . L : : 3 : 607
avoided by subsequent demand . ‘ ‘ 5 608
of specific articles, where to be made ‘ j 609-611
how to be made . ; 3 - 6lla

(See Payment.)
INDEX. 781

SxcrIon
TRESPASS,

gist of, and points of plaintiff’s proofs ' . . 613
(1.) possession of plaintiff  . 5 ‘ * 614
constructive . : ; . . 615

by lessee or bailee . . . . . 616

by general owner or reversioner j . 616

of partition fences . . : - . 617

of line trees. . . . . . 617

by wrongdoer . . 5 . . . 618

by occupant or lodger . . . . 618

‘by finder of goods. : . : : 618

ratione soi. . ; : . ‘ 618

of animals fere nature . ‘ : F 620

right of entry not sufficient . . . . : 619
boundaries, when necessary to be proved . . - 6184
injury by defendant with force ‘ : : : 621
wrongful intent not necessary . 622

with force directly applied . . 623

proof of time when material . . . . 624

trespass, when it may be waived and another

proved . ; ; . : ; : 624

general issue, evidence under . : . . : 625
plea of iberum tenementum, evidence under 5 : 626
license . 7 . . . . : : 626

in law < ‘ ‘ C : . 628
justification under process : . ‘ : : 629
defence of property . . . . 630

right of way ee . ee 631, 632

right to dig gravel . s . : 631

replication de injuria, evidence under 3 ; : 633
new assignment in . < . . ‘ ‘ 634, 635

TROVER,

peels in, by plaintiff . ‘ . ‘ 636-647
(1.) of property in plaintiff ‘ : , . 637

special, nature of . ‘ « 687, 2.

in goods, by sale. “8 638

in negotiable securities . . 639

right of present possession : : . 640
property as executor, &c. . % . . 641

(2.) conversion by defendant, what is A i 642

license, when presumed 643
VOL. IL. 66
782 INDEX.

SECTION

TROVER, continued.
proofs in, (2.) conversion by defendant, when proved
by demand and refusal ‘ e 644, 645

when not. . ; 645
between tenants in common, evidencein . . ‘ 646
when a sale by one is a conversion 646, 2.
by husband and wife ‘ : ; ‘ ‘ 647
defences in this action . ‘ 5 ‘ z . 648
damagesin . é , ; is : : 649
U.
UNDUE INFLUENCE,
what : ; ; 688
USAGE, (See Cusrox AND > Usaan.)
USE AND OCCUPATION,
defence to action for 2 ‘ ‘ . ‘ . 135
Vv.
VARIANCE, . . ; ‘ : 11, 12, 13, 160, 189, 625
Ww. :
WASTE,
what is, and how punishable . ‘ . . . 650
damages in. ; $ ae . . 650
action of ‘ a : : ‘ é ‘ 651, 652
pleas in . : : : i 653
action on the case for, by landlord : . ‘ é 654
proofs in . - 654
must be specially stated and proved . . : ; 655
general issue in, evidence under ‘ ‘ . 656
by plaintiff : a 656
by defendant . ‘ 656
WAY,
private, how it may exist : . : ‘ : 657
by necessity ; : “ 658
appurtenant : ‘ - 6594
how proved ‘i : . . . 659
when lost by non-user . ; ‘ . 660, 665
proofs by defendant, in action for disturbance of : 660

in trespass a‘ 5 ‘ : 661
INDEX. 783

SEcrIon
WAY, continued.
public, how proved . ; : : : ; - 662
proved by dedication . 7 5 - 662
by whom inate 3 5 - 663
how rebutted . ‘ - 664
not lost by non-user. ‘ , ‘ - 665
WILLS,

diversities in modes of proof of . i a 5; . 666
by what law governed ‘ ‘ a ‘ . - 668
as to movables . , - 668, 669
astoimmovables . . - 670
by what law interpreted . ‘ : . F - 671
probate, effect of ~. see Ss Z é - . 672
when conclusive . ‘i ‘ i ‘ - 672
mode of proof of . ‘i ‘i . 889, 340, 343, n.
signature of, by testator, what is sufficient . . 674
publication of, what is, and when necessary 5 - 675
witnesses, need not see testator actually sign fi - 676
how many necessary . : ‘ ‘ - 677
must sign in testator’s presence . : - °678
presence of testator, what is ‘ ‘4 F 7 - 678
thirty years old, need not be proved . ‘i . . 679
revocation of, what is ‘ a , - 680
express, by ‘dheeqacel will . ; . 681
. by deed of revocation 5 - 681
by cancellation . - 681
by cancellation of dlaplieate - 682

when avoided by destroying the
instrument of revocation - 683

must be by testator while of
sound mind ‘ ei - 681, 2.
implied, on what principle. 5 - 684
by marriage and issue . 684, 685
by alteration of estate . - 686
by void conveyance. : - 687
revival of . ‘ ‘ 3 ‘i ‘5 ‘ F . 683
how avoided. ‘ . . . . - 688
obtained by undue sities when. - : - 688
insanity of testator, burden of proving . . - 689
at time of executing the will . . 690
what is evidence of , a - 690

proved by admissions, when . - 690
784 , INDEX.

SECTION
WILLS, continued.
declarations of devisees in disparagement of . - 690
attesting witnesses, why required ‘ é 3 - 691
must be competent ‘ ‘ - 691
may testify as to belief . . 691
proof of, in Courts of CommonLaw .. : 692, 693
when lost . - . . . - 688 a
under issue of devisavit da non. - 698, 694

WRITTEN INSTRUMENTS,
production of . ‘ 3 - . é . . 11

variance in proof of . : ‘ . 7 . 5 11
date of, when material . . . : . - 12,138
how to be pleaded . ‘ . , - 14,15

proof of, when it may be called fon : ‘ ; ‘ 16
loss of, how proved . . . . : . ’ 17

END OF YOL. Il.