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The Law Of Contracts | by Theophilus Parsons



In a book of such scope, it is impossible, without exceeding proper limits, and if it were possible it would be undesirable, to cite all pertinent decisions. No attempt at this sort of completeness has been made. Especially, where a number of decisions in a single jurisdiction are merely cumulative, and the latest decision affords ready reference to the earlier, it has been deemed sufficient to cite the latest case only...

TitleThe Law Of Contracts
AuthorTheophilus Parsons
PublisherLittle, Brown, And Company
Year1893
Copyright1893, David L. Webster, Francis A. Dewson, And Charles M. Reed
AmazonThe law of contracts

By Theophilus Parsons, Ll.D., author of treatises of the elements of mercantile law, on the law of shipping and admiralty, on marine insurance, on partnership, on notes and bills, and on the laws of business and business men.

Volumes I, II and III

Eighth Edition,

Edited By Samuel Williston.

University Press: John Wilson And Son, Cambridge, U.S.A.

-Dedication
To William II. Prescott, Esq., The Historian Of Spain, Mexico, And Peru. I might, perhaps, find some excuse for dedicating this work to you, in the natural desire of connecting my own labors with t...
-Preface To The Eighth Edition
In this edition the text with slight exceptions remains unchanged from the last edition. In a very few instances, where statements were obviously wrong or misleading, a sentence or paragraph has been ...
-Part I. The Law Of Contracts Considered In Reference To The Obligations Assumed By The Parties. Preliminary Chapter. Section I. Of The Extent And Scope Of The Law Of Contracts
The Law of Contracts, in its widest extent, may be regarded as including nearly all the law which regulates the relations of human life. Indeed, it may be looked upon as the basis of human society. Al...
-Definition Of Contracts
A contract, in legal contemplation, is an agreement between two or more parties, for the doing or the not doing of some particular thing. (a) It has been said that the word agreement is derived ...
-Section III. Classification Of Contracts
The most general division of contracts is into contracts by specialty, and simple contracts.1 (C) See the Abridgments of Brooke, Rolle, Bacon, etc. (d) Vol. III.-* 16. 1 Contracts are also di...
-Of Parties To A Contract. Chapter I. Classification Of Parties
Parties may act independently and severally, or jointly, or jointly and severally. They may act as representative of others, as Agents, Factors or Brokers, Servants, Attorneys, Trust...
-Chapter II. Of Joint Parties. Section I. - Whether Parties Are Joint Or Several
Wherever an obligation is undertaken by two or more, or a right given to two or more, it is the general presumption of law that it is a joint obligation or right. Words of express joinder are not nece...
-Of Joint Parties. Section I. - Whether Parties Are Joint Or Several. Part 2
1 But see in re Davison, 13 Q. B. D. 50. The question whether the right under a contract is joint or otherwise, enters more intimately into the nature of the contract, and therefore is of more impo...
-Of Joint Parties. Section I. - Whether Parties Are Joint Or Several. Part 3
& C. 256; Slingsby's case, 5 Rep. 19 a; Rolls v. Yates, Yelv. (Metcalrs ed.), 177, n. - On the supposition that this exception exists, both rule and exception might he expressed by stating the proposi...
-Of Joint Parties. Section I. - Whether Parties Are Joint Or Several. Part 4
* and who has sustained the damage arising from a breach. of * the contract, and whether such damage was joint or several. (k) The nature, and especially the entireness (l) of the consideration,...
-1. Where a joint action was held properly
Wakefield v. Brown, 9 Q. B. 209. Covenant. Bingley, being owner of a term of sixty-one years, granted an annuity to Samuel W, and for securing payment, assigned the term (wanting one day) to Robert W....
-Section II. Of Some Incidents Of Joinder
Parties are not said to be joint in law, merely because they are connected together in some obligation or some interest Roll. Abr. 31, pl. 9. Assumpsit. The several cattle of the two plaintiffs hav...
-2. In the following cases it was held that a several action should have been joint
Lucas v. Beale, 20 Law Jour. (N. S.) C. P. 134, 4 E. L. & E. 358. Assumpsit. The plaintiff, acting on behalf of the members of an orchestra, to which he himself belonged, signed a proposal, on behal...
-3. In the following cases a several action was held to be properly brought
Keightley v. Watson, 3 Exch. 716. [For an abstract of this case see note (j) supra.] - Jones v. Robinson, 1 Exch. 454. The declaration stated that the plaintiff and A B carried on business in copartne...
-4. In the following cases it was held that a joint action should have been several
Seaton v. Booth, 4 A. & E. 528, Assumpsit. A, B, & C, being interested in certain lands, but having no common, legal interest in any porton of them, agreed together, according to their respective inte...
-In the following cases it was held that a joint action should have been several. Part 2
Where a technical release, that is, a release under seal, is given to one of two joint debtors, and the other being sued pleads the joint indebtedness and the release, it is no answer to say that the ...
-a joint action should have been several. Part 3
Joint trustees are not necessarily liable for each other, or bound by each other's acts. Each is liable for the acts of others, only so far as he concurred in them, or connived at them, actively or ne...
-Section III. Of Contribution
Where two or more persons are jointly, or jointly and severally, bound to pay a sum of money, and one or more of them pay the whole, or more than his or their share, and thereby relieve the others so ...
-Of Contribution. Part 2
The surviving surety on a joint administration bond, on account of which he was compelled to make large payments, sought to recover contribution from the representatives of a deceased co-surety, it wa...
-Of Contribution. Part 3
At law a surety can recover from his co-surety only that coif the surety be notified that there is no defence. Beckley v. Munson, 22 Conn. 299. - In Boardman v. Page, 11 N. H. 431, where an action was...
-Of Contribution. Part 4
(s) Osborne v. Harper, 5 East, 225; Boggs p. Curtin, 10 S. & R. 211; Pearson v. Parker, 3 N. H. 366; Jewett v. Corn-forth, 3 Greenl. 107; Fletcher v. Jackson, 23 Vt. 593. Contra, Gould v. Gould, 8 Cow...
-Chapter III. Agents. Section I. - Of Agency In General
The law of agency is now of very great importance. Such is the complexity of human affairs in civilized society, that very few persons are able to transact all their business, supply all their wants, ...
-Agents. Section I. - Of Agency In General. Part 2
And if no special injunction of secrecy was made, the result would be the same, for from the nature of the case, such an instruction, so far as regards the minimum price, must be intended as a private...
-Agents. Section I. - Of Agency In General. Part 3
1 Thus where a general agent gave, without authority, a lease under seal in his principal's name, and received rent thereunder, its surrender to him is a good defence to the principal's action for fur...
-Agents. Section I. - Of Agency In General. Part 4
(g) In Mechanics Bank v. N. Y. etc. R. Co. 3 Kernan, 632, it is said by Comstock, J., in giving the decision of the court of appeals, There are in the books many loose expressions concerning the dis...
-Section II. In What Manner Authority May Be Given To An Agent
The facts being undisputed, the question whether the alleged agent had sufficient authority, is a question of law. (qq) An agent, generally, may be appointed by parol, and so authorized to do anything...
-Section III. Subsequent Confirmation
As agency may be presumed from repeated acts of the agent, adopted and confirmed by the principal previously to the contract in which the question is raised. (d) so agency may be confirmed 21; Haug...
-Subsequent Confirmation. Part 2
630; Poph. 108, pl. 2, and is cited with approbation by Lord Coke in Margaret Podger's case (9 Rep. 106 a), appears to us to govern the present. There the entry to be good must have been made within ...
-Subsequent Confirmation. Part 3
A ratification is too late if it defeats the intervening rights of a third party. (il) l Where the party who undertakes to act as agent has affixed a seal to an instrument which did not need a seal...
-Subsequent Confirmation. Part 4
1 But where one purposely shuts his eyes to means of information within his own possession and control and ratifies an act deliberately, having all the knowledge in respect to it which he cares to h...
-Section IV. Signature By An Agent
The manner in which an agent should sign an instrument for his principal has given rise to some controversy. There has been a tendency to discriminate in this respect; to say, for instance, that if A ...
-Signature By An Agent. Continued
(w) 8 Pick. 56; Northampton Bank v. Pepoon, 11 Mass. 288, 292. (x) In favor of this rule may be cited Humble v. Hunter, 12 Q. B. 310; Hig-gins v. Senior, 8 M. & W. 834; Trueman v. Loder, 11 A. & E....
-Section V. Duration And Extent Of Authority
Where there is an authority expressly given or implied by law, it is important to determine its extent, scope, and duration. Where a principal has held one out as his general agent, or authorized part...
-Duration And Extent Of Authority. Part 2
(e) Daniel v. Adams, Ambl. 495. And the incidental means the agent resorts to in carrying out bis authority must be those which usually attend an agency of that kind: if an extraordinary exigence occu...
-Duration And Extent Of Authority. Part 3
(kk) Weston v. Alley, 49 Maine, 94. But see State v. Atherton, 16 N. H. 203; Stevenson v. Hoy, 43 Penn. St. 191; Hatch v. Coddington, 95 U. S. 48. (kl) Tod v. Benedict, 15 Ia. 591. See Lumpkin v. W...
-Section VI. The Eight Of Action Under A Contract Made By An Agent
In contracts by deed no party can have a right of action under them but the party whose name is to them; (y) 2 but in the case of a simple contract an undisclosed principal may show that the apparent ...
-Section VII. Liability Of An Agent
An agent is not personally liable, unless he transcends his agency, or departs from its provisions, (h) or unless he expressly pledges his own liability, (i) in which case he is liable although he des...
-Liability Of An Agent. Continued
(t) Dusenberry v. Ellis, 3 Johns. Cas. 70: Byars v. Doores, 20 Mo. 284; Bayley B., Thomas v. Hewes, 2 Cr. & M. 530, n. (a), Collen v. Wright, 7 E. & B. 301, affirmed in 8 E. & B. 647. And a subsequent...
-Section VIII. Revocation Of Authority
It is a general principle, that an authority is always revocable; the principal may at any time put an end to the relation between himself and his agent by withdrawing the authority, unless the author...
-Revocation Of Authority. Part 2
. A revocation of authority may be made either expressly or by any action in relation to the subject-matter which is manifestly irreconcilable with a continuance of the authority. (bb)1 And it (yy)...
-Revocation Of Authority. Part 3
T3 the agent may do all that is necessary to realize his interest and make it beneficial to himself. Such an agency is not revocable at the pleasure of the principal in his lifetime, (e) and if the ag...
-Section IX. How The Principal Is Affected By The Misconduct Of His Agent
A principal is liable for the fraud or misconduct of his agent, so far, that, on the one hand, he cannot take any benefit from any misrepresentation fraudulently made by his agent, although the princi...
-Section X. Of Notice To An Agent
A principal is affected by notice to his agent, respecting any matter distinctly within the scope of his agency, when the notice is given before the transaction begins, or before it is so far * comple...
-Of Notice To An Agent. Part 2
On the other hand it is held that the principal is so chargeable, at least if the knowledge in question was so recently acquired as to be presumably present to the agent's mind, when he acted as such,...
-Of Notice To An Agent. Part 3
where a * purchaser employs the same solicitor as the vendor, he is affected with notice of whatever that solicitor had notice of, in his capacity of solicitor for either vendor or purchaser, in the t...
-Section XI. Of Shipmasters
A master of a ship has, by the policy of the law-merchant, some authority not usually implied in other cases of general agency. (y) Thus, he may borrow money, if the exigencies and necessities of his ...
-Section XII. Of An Action Against An Agent To Determine The Right Of A Principal
It is a rule of law in respect to all agencies, that where money is paid to one as agent, to which another as principal has color of right, the right of the principal cannot be tried in an action brou...
-Section XIII. The Rights And Obligations Of Principal And Agent As To Each Other
An agent with instructions is bound to regard them in every point; nor can he depart from them, without making himself * responsible for the consequences. (g) If he have no instructions, or indistinct...
-The Rights And Obligations Of Principal And Agent As To Each Other. Part 2
(o) Gordon v. Buchanan, 5 Yerg. 81. (p) Combe's Case, 9 Rep. 75 b, 76 a; Harralson v. Stein, 50 Ala. 347; Drum v. Harrison, 83 Ala. 384; Lynn v. Burgoyne, 13 B. Mon. 400; Connor v. Parker, 114 Mass...
-The Rights And Obligations Of Principal And Agent As To Each Other. Part 3
(x) Co. Litt, 89 a; Chapman v. Walton, 10 Bing. 57; Lawler v. Keaquick, 1 Johns. Cas. 174; Kingston v. Kincaid, 1 Wash. C. C 454; Babcock v. Orbison, 25 Ind. 75; Pappa v. Rose, L. R. 7 C. P. 32, 52...
-The Rights And Obligations Of Principal And Agent As To Each Other. Part 4
(e) Webster v. De Tastet, 7 T. P. 157; The Amiable Nancy, 3 Wheat. 560; Smith v. Condry, 1 How. 28; Tidewater Canal Co. v. Archer, 9 G. & J. 479. (ee) Hardman v. Wilcox, 9 Bing. 382, n. (a). 1 B...
-The Rights And Obligations Of Principal And Agent As To Each Other. Part 5
5 Johns. 43; Jackson v. Walsh, 14 id. 407; Williams's Ex'rs v. Marshall, 4 G. & J. 376; Litchfield v. Cudworth, 15 Pick. 31; Pitt v. Petway, 12 Ired. L. 69. How far a court of law, at the instance ...
-Section XIV. Of Public Agents
A public agent,2 as for example, a collector, has been held liable for the acts of his deputy in exacting illegal compensation, notwithstanding he believed the compensation authorized by law and accou...
-Chapter IV. Factors And Brokers. Section I. - Who Is A Factor, And Who A Broker
Factors and Brokers are both and equally agents; but with this difference: the Factor is intrusted with the property which is the subject-matter of the agency; the Broker is only employed to make a ba...
-Section II. Of Factors Under A Commission
Whether a factor who sells under a del credere or guaranty commission becomes thereby a principal debtor to his prin-cipal * or only a surety, has been somewhat doubted; (b) if he be a principal debto...
-Section III. Of The Duties And The Rights Of Factors And Brokers
A broker or factor is bound to ordinary care, and is liable for any negligence, error, or default, incompatible with the care and skill properly belonging to the business that he undertakes. (i) It is...
-Of The Duties And The Rights Of Factors And Brokers. Part 2
He is bound to obey positive instructions precisely, but not mere wishes or inclinations; (q) and will be justified in departing from precise instructions if an unforeseen emergency arises, and he act...
-Of The Duties And The Rights Of Factors And Brokers. Part 3
* The factor and the principal may sometimes have con- * 97 (z) Paterson v. Gandasequi, 15 East, 62; Addison v. Gandasequi, 4 Taunt. 574. The following authorities distinguish the foreign and domes...
-Of The Duties And The Rights Of Factors And Brokers. Part 4
3 The mere possession of bills of lading of cotton confers no lien on the factors to whom it was shipped as against an attachment. Saunders v. Bartlett, 12 Heiskell, 316; Oliver v. Moore, 12 ib. 482; ...
-Of The Duties And The Rights Of Factors And Brokers. Part 5
2 Or if he opens a negotiation, and his principal completes the sale, he can recover the proper proportion of the commission. Martin v. Silliman, 53 N. Y. 615. See a proper bargain, has been held enti...
-Chapter V. Servants
In England the relation of master and servant is in many respects regulated by statutory provisions, and upon some points is materially affected by the existing distinction of ranks, and by rules whic...
-Servants. Part 2
26 Ind. 70. (c) On this ground rests the distinction now well established, between the negligence of the servant and his wilful and malicious trespass; the act in either case being done in the cour...
-Servants. Part 3
(cc) Schwartz v. Gilmore, 45 Ill. 455. (cd) Daeglingf. Gilmore, 49 Ill. 248. (d) Milligan v. Wedge, 12 A. & E. 737; Martin v. Temperley, 4 Q. B. 298; De Forrest v. Wright, 2 Mich. 368; Pierce v....
-Servants. Part 4
(ii) New Orleans R. Co. v. Allbritton, 38 Miss. 242. (ij) Ballou v. Farnum, 9 Allen, 47. (j) Storrs v. City of Utica, 17 N. Y. 104. This case throws some doubt on Blake v. Ferris, 1 Seld. 48. ...
-Servants. Part 5
(n) Althorfe v. Wolfe, 22 N. Y. 355. (o) See Rich v. Basterfield, 4 C. B. 783; Rex v. Pedley, 1 A. & E. 822, 3 Nev. & M. 627; Fish v. Dodge, 4 Denio, 311; Carle v. Hall, 2 Met. 353. And this doctri...
-Chapter VI. Of Attorneys
Attorneys are made so by a letter or power of attorney, (a) or they are Attorneys of Record. It is a general rule, that one acting under a power of attorney cannot execute for his principal a seale...
-Of Attorneys. Part 2
(c) Gage v. Gage, 10 Foster (N. H.), 420; Clark, v. Graham, 6 Wheat. 577. .(d) Shaw v. Nudd, 8 Pick. 9; Coles v. Trecothick, 9 Ves. 234; Clinen v. Cooke, 1 Sch. & L. 22; McComb v. Wright, 4 Johns. ...
-Of Attorneys. Part 3
(ee) Love v. Sierra Nevada, etc. Co. 32 Cal. 639. (ef) Sheehan v. Davis, 17 0. St. 571. (f) Fletcher v. Daingerfield, 20 Cal. 427; Cohen v. Wright, 22 Cal. 293; Ex parte Yale, 24 Cal. 241. (g...
-Of Attorneys. Part 4
(p) Bricheno v. Thorp, 1 Jac. 300.- It is not clear, however, if it be distinctly shown that confidential disclosures have been made to the attorney or solicitor, which if communicated to the other pa...
-Of Attorneys. Part 5
(d) Hall v. Ashurst, 1 Cr. & M. 714; Iveson v. Conington, 1 B. & C. 160; Bur-rell v. Jones, 3 B. & Ald. 47; Scrace v. Whittington, 2 B. & C. 11; Watson v. Murrell, 1 C. & P. 307. - In New Hampshire, i...
-Of Attorneys. Part 6
There are many English statutes relating to the powers, duties, and responsibilities of attorneys, which have no force in this country. Most of our courts have their own rules of practice bearing some...
-Chapter VII. Trustees. Section I. - The Origin Of Trusts
It can hardly be denied that Trusts in the English law had a fraudulent origin. It was sought, by the intervention of a trustee, to evade the feudal law of tenures and the prohibitions of the statutes...
-Section II. Classification Of Trusts
Trusts are simple when property is vested in one person upon trust for another, without any particular directions or provisions; (a) Attorney-General v. Sands, Har-dres, 491, arguendo, A trust is ...
-Section III. Private Trustees
A private trustee is, as we have seen, one to whom property, either real or personal, has been given to be held in trust for the benefit of others; and the most common instances are trustees of proper...
-Section IV. Public Trustees
There is an important difference between these trustees and private trustees, in respect to their personal responsibility for their contracts. Where one acts distinctly for the public, and in an offic...
-Chapter VIII. Of Executors And Administrators
They act as the personal representatives of the deceased, having in their hands his means, for the purpose of discharging his liabilities or executing his contracts, and of carrying into effect his wi...
-Of Executors And Administrators. Part 2
(i) Lord Abinger, C. B., Raymond v. Fitch, 2 C, M. & R. 538, 599, 5 Tyr. 985; Lucy v. Levington, 2 Lev. 26, 1 Ventr. 175; Bacon's Abr. Executors and Administrators, N. (j) Com. Dig. Covenant, B. 1,...
-Of Executors And Administrators. Part 3
B. D. 599. By statute the number of actions which survive has been much enlarged. Almost universally rights ex delicto in regard to property, and frequently rights for personal injuries, survive and p...
-Chapter IX. Guardians. Section I. - Of The Kinds Of Guardians
Guardianship at common law has fallen into comparative disuse in this country, although many of the principles which determined the rights and duties of that relation are adopted, with various qualifi...
-Section II. Of The Duty And Power Of A Guardian
The guardian is held in this country to have only a naked authority, not coupled with an interest. (a) His possession of the property of his ward is not such as gives him a personal interest, being on...
-Chapter X. Corporations
A corporation aggregate is, in law, a person; (a)1 and it was an established principle of the common law, that corporations aggregate could act only under their common seal (b) but to this principle t...
-Corporations. Part 2
by law, raise an implied promise of performance. (jj) A corporation is a citizen of the State which creates it, as to its right to sue or be sued in the courts of the United States. (jk) But it has no...
-Corporations. Part 3
(l) Koehler v. Iron Co. 2 Black, 715. (ll) Gashwiler v. Willis, 33 Cal. 11. (lm) Chamberlain v. Chamberlain, 43 N. Y 424; In re McGraw, 111 N. Y. 66. A corporation is the creature of the law,...
-Corporations. Part 4
1 A contract made by a corporation, which is unlawful and void because beyond the scope of its corporate powers, does not, by being carried into execution, become lawful and valid, but the proper re...
-Chapter XI. Joint-Stock Companies
In England the statute of 7 & 8 Victoria, oh. 110, has the effect of making joint-stock companies, formed and registered in a certain way, quasi-corporations.1 In this country, wherever there are no s...
-Chapter XII. Partnership. Section I. - What Constitutes A Partnership
A partnership exists when two or more persons combine their property, labor, and skill, or one or more of them, in the transaction of business, for their common profit. (a) A copartnership is not a co...
-Section II. Of The Real Estate Of A Partnership
All kinds of property may be held in partnership; and there may be a partnership to trade in land, (f)1 or to cultivate land *for the common profit;(g) but real estate is still subject, to a certain e...
-Section III. Of The Good-Will
The good-will of an establishment is considered, at least for some purposes, as partnership property.1 Indeed, in case of insolvency, or for other sufficient reasons, a court will take cognizance of i...
-Section IV. Of The Delectus Personarum
The partnership must be voluntary; and therefore no partner and no majority of partners can introduce a new member without the consent of the others. The delectus personarum is always preserved, and i...
-How A Partnership May Be Formed
A partnership may be formed by deed, or by parol; and with or without a written agreement. (v)1 And whatever be the arrangeor heir of one of the members does not become a member, unless by consent or ...
-How A Partnership May Be Formed. Part 2
(z) Langdale, ex parte, 18 Yes. 300 1 A partner in an unlawful business is without remedy against his co-partners, Snell v. Dwight, 120 Mass. 9; Dunham v. Presby, ib. 285; Lane v. Thomas, 37 Tex 15...
-How A Partnership May Be Formed. Part 3
In 1860, however, the House of Lords in effect overthrew this doctrine and overruled these cases by its decision in Cox v. Hickman, 8 H. L. C. 268. And the last-named case and those which have followe...
-How A Partnership May Be Formed. Part 4
(j) Cottrill v. Vanduzen, 22 Vt. 511; Gilpin v. Temple, 4 Harring. 90; Furber v. Carter, 11 Humph. 271; Grieff v. Bon-dousquie, 18 La. An. 631; Sherrod v. Langdon, 21 Ia. 518. (k) Morse v. Wilson, ...
-Section VI. Of The Eight Of Action Between Partners
It is generally true that one partner cannot sue a copartner at law in respect to any matter growing out of the transactions of the partnership, and involving the examination of the partnership accoun...
-Of The Eight Of Action Between Partners. Continued
Me'. 211. (qq) Truitt v. Baird, 12 Kan 420; Morgan v. Nunes, 54 Miss. 308; Currier v, Webster, 45 N. H. 226: Currier v. Rowe, 46 N. H. 72. (qr) Chamberlain v. Walker, 10 Allen, 429. (7s) H...
-Section VIII. Of Secret And Dormant Partners
A secret partner is one not openly and generally declared to be a partner, (w) and a dormant partner is strictly one who takes no share in the transaction or control of the partnership business; but i...
-Section IX. Of Retiring Partners
* When a partner retires from a firm, notice is usually given by public advertisement, or by letters to the customers of the firm, or both; and generally, in the case of a retiring partner as in that ...
-Section X. Of Nominal Partners
A nominal partner, or one held out to the world as such without actual participation of profit and loss, is of course held, generally, as responsible for the debts of the partnership.1 But one who not...
-Section XI. When A Joint Liability Is Incurred
Where there is no joint purchase or joint incurring of debt, but a purchase by one to whom alone credit is given, a subsequent joint interest in the property purchased, and in the business and profits...
-Section XII. Of The Authority Of Each Partner
It is a general rule, both throughout Europe and in this country, that the whole firm and all the members of a copartnership are bound by the acts and contracts of one partner with reference to the pa...
-Of The Authority Of Each Partner. Part 2
We have seen that each partner is for many purposes the agent of all the rest, by force of law, without any express authority. (r) 1 obliged by stress of weather to put into Norfolk, where M. sold the...
-Of The Authority Of Each Partner. Part 3
Land Credit Co., L. R. 8 Ch. 831; or mortgage firm goods for a firm debt, Richard son v. Lester, 83 Ill. 55; or settle an insurance loss, Brown v. Hartford Ins. Co., 117 Mass. 479; or borrow money, Ho...
-Of The Authority Of Each Partner. Part 4
1 The weight of recent authority is against this power. See cases cited in note (t). Unless the other partners have absconded or are absent and cannot be communicated with at once and immediate action...
-Of The Authority Of Each Partner. Part 5
(x) Monroe v. Conner, 15 Me. 178. Shepley, J.: It is quite obvious that there may be a difference between the goods coming to the use of the firm, and a benefit derived to the dissenting partner fro...
-Of The Authority Of Each Partner. Part 6
(h) Church v. Sparrow, 5 Wend. 223; Whitaker v. Brown, 16 id. 505; Miller v. Manice, 6 Hill (N. Y.), 114. Whether the money was so borrowed and appropriated is a question for the jury. Church v. Sparr...
-Of The Authority Of Each Partner. Part 7
A mortgage of firm property by a partner in his own name, conveys no title. (nn) The act of each partner is considered as the act of the whole partnership, or of all the partners, only so far as th...
-Of The Authority Of Each Partner. Part 8
And it may perhaps still admit of doubt whether an innocent person who receives from a partner for value partnership property in ignorance that it is such, does not acquire a good title. See Moriarty ...
-Of The Authority Of Each Partner. Part 9
(y) Boyd v. Plumb, 7 Wend. 309; Rollins v. Stevens, 31 Me. 454 , Butterfield v. Hemsley, 12 Gray, 226 (z) Darling v. March, 22 Me. 188; A release by one partner is a release by all, both in law ...
-Of The Authority Of Each Partner. Part 10
(g) Doe v. Hulme, 2 Man. & R. 483. (A) Goodtitle v. Woodward, 3 B. & Ald. 689. But one joint-tenant may appoint a bailiff to distrain for rent due all the joint tenants. Robinson v. Hof-man, 4 Bing...
-Of The Authority Of Each Partner. Part 11
If the terms of the contract, and all the facts necessary for its construction, are ascertained, the question whether there is a partnership, is a question of law. (s) No particular mode of holding...
-Of The Authority Of Each Partner. Part 12
(v) Kirwan v. Kirwan, 2 Cr. &M. 617. In this case it appeared that A kept an account in the nature of a banking account with the firm of 15. & Co., and annual accounts were rendered to him. During the...
-Section XIII. Power Of A Majority
Whether the majority of the partners of a firm can bind the minority, is not yet quite determined by authority. Some cases show a disposition to admit this power, but to confine its exercise to the in...
-Section XIV. Of Dissolution
The dissolution of a partnership does not affect the liability of the partners for former debts,1 but in general, prevents the incurring of a new joint liability. 1 Nor will a dissolution prevent l...
-Of Dissolution. Part 2
(k) Peacock v. Peacock, 16 Ves. 56; Crawshay v. Maule, 1 Swanst. 495. See Pearpoint v. Graham, 4 Wash. C. C. 234, where Washington, J., distinctly affirms the rule indicated by the English authorities...
-Of Dissolution. Part 3
(p) Hall v. Hall, 3 E. L. & E. 191; s. c. 3 Mac. & G. 79; Roberts v. Eberhardt, 23 E. L. & E. 245; s. c. 1 Kay, 148; Speights v. Peters, 9 Gill, 472; Sloane v. Moore, 37 Penn. St. 217. (q) Horton's...
-Of Dissolution. Part 4
(t) Whitman v. Leonard, 3 Pick. 177. (u) Leaf v. Coles, 12 E. L. & E. 117. 1 Whether death will work a dissolution in a partnership or voluntary association composed of many members depends upon...
-Of Dissolution. Part 5
(a) Atwood v. Gillett, 2 Doug. (Mich.) 206. (b) Fox v. Hanbury, Cowp. 445; Harvey v. Crickett, 5 M. & Sel. 336; Gordon v. Freeman, 11 Ill. 14; Major v. Hawkes, 12 Ill. 298. (bb) Cunningham v. Br...
-Of Dissolution. Part 6
When a partner dies, the partnership property goes to the survivors for the purpose of settlement, and they have all the power necessary for this purpose, and no more. (f)1 Thus they may the partner o...
-Of Dissolution. Part 7
2 Though this statement is sometimes made, Tremper v. Conklin, 44 N. Y. 58, 61, it is erroneous. Partners are joint tenants, and on the death of one, the title to the partnership property vests absolu...
-Section XV. Of The Rights Of Creditors In Respect To Partnership Funds
The property of a partnership is bound to the payment of the partnership debts, and the right of a private creditor of one copartner to that partner's interest in the property of the firm, is postpone...
-Of The Rights Of Creditors In Respect To Partnership Funds. Part 2
(d) The reason of this exception to the general doctrine is, that the public rely on the personal credit of the ostensible owner, and not on that of the dormant partners. Lord v. Baldwin, 6 Pick. 348;...
-Of The Rights Of Creditors In Respect To Partnership Funds. Part 3
Ala. (n. s.) 319. In New Hampshire, the right of a sheriff to take possession of partnership property, levied on for the private debt of a partner, has been denied after an elaborate examination of th...
-Of The Rights Of Creditors In Respect To Partnership Funds. Part 4
(j) Morrison v. Blodgett, 8 N. H. 254. Parker, J.: Whether, under our present laws, the creditor can do more than return a general attachment of the interest of his debtor in the partnership, and su...
-Of The Rights Of Creditors In Respect To Partnership Funds. Part 5
1 Rose, 422. Lord Thurlow broke in upon this rule, allowing joint creditors to prove and take dividends under a separate commission, and holding that a commission of bankruptcy was an execution for al...
-Section XVI. Limited Partnership
This species of partnership has been but recently introduced into this country, but has already been adopted in very many of our States, and promises to be of great utility. 1 We have borrowed it from...
-Chapter XIII. New Parties By Novation
The term novation has not been much used in English or American law, hut may he found in some late English cases; and the thing itself, or this form of contract, may he found in many cases, both in ...
-New Parties By Novation. Part 2
1 Thus where a mortgagor conveys the mortgaged premises, and his grantee agrees to assume and pay the mortgaged debt, and the mortgagee accepts him as his debtor, a novation results, Campbell v. Smith...
-New Parties By Novation. Part 3
1 There must be an absolute extinguishment of the original debt. Caswell v. Fellows, 110 Mass. 52. As to extension of the time of payment being a sufficient consideration, see Windham v. Doles, 59 Ga....
-Chapter XIV. New Parties By Assignment. Section I. - Of Assignments Of Choses In Action
Any right under a contract, either express or implied, which has not been reduced to possession, is a chose in action; (a) and is so called because it can be enforced against an adverse party only by ...
-Of Assignments Of Choses In Action. Part 2
*in equity as a declaration of trust, and an author- ization to the assignee to reduce the interest to posses-sion.(f) But if the assignee be a mere nominal holder, without interest in the thing assig...
-Of Assignments Of Choses In Action. Part 3
(kk) Jordan v. Gillen, 44 N. H. 424. (l) Hall v. Robinson, 2 Comst. 293, overruling Gardner v. Adams, so far as the latter conflicts with what is stated in the text. It will be perceived that this ...
-Section II. Of The Manner Of Assignment
It was once held that the assignment of an instrument must be of as high a nature as the instrument assigned. (d) But this rule has been very much relaxed, if not overthrown; and indeed it has been de...
-Section III. Of The Equitable Defences
We have seen that an assignee of a chose in action takes it subject to all the equities of defence which exist between the assignor and the debtor. (h) The assignee does not take a legal interest, nor...
-Section IV. Covenants Annexed To Land
A covenant affecting real property, made with a covenantee who possesses a transferable interest therein, is annexed to the estate, son v. Bloodgood, 1 Johns. Cas. 51; Anderson v. Van Alen, 12 Johns. ...
-Chapter XV. Of Gifts; Or Voluntary Assignments Of Chattels. Section I. Of Gifts Inter Vivos
The word gift is often introduced into deeds of land; but by gifts are usually meant transfers of chattels, which are wholly voluntary, or without any pecuniary or good consideration. They are usual...
-Of Gifts; Or Voluntary Assignments Of Chattels. Section I. Of Gifts Inter Vivos. Continued
What constitutes such delivery often presents a difficult question. In Wheeler v. Wheeler, 43 Conn. 503, the purchase of a horse by a husband with the expressed intention of making an immediate gift t...
-Section II. Of Gifts Causa Mortis
These gifts can be made only by a person by whom death is believed, on reasonable grounds, to be very near, and who makes the gift in view of, and because of, his approaching death. (ff) 3 ( f) For...
-Chapter XVI. New Parties By Indorsement, Or Of Negotiable Bills And Notes. Section I. - Of The Nature And Effect Of Indorsement
By the ancient rules of law we have seen that the transfer of simple contracts was entirely forbidden. It is usually expressed by the phrase, that a chose in action is not assignable. But bills of exc...
-Of The Nature And Effect Of Indorsement. Part 2
(cd) Banks v. Marshall, 23 Cal. 223. (d) There can be no indorsement without a signing of the name. Vincent v. Horlock, 1 Camp. 442. In this case A, the drawer and payee of a bill of exchange, indo...
-Of The Nature And Effect Of Indorsement. Part 3
(j) Montague v. Perkins, 22 E. L. & E. 516; Russel v. Langstaffe, Dougl. 514; Violett v. Patton, 5 Cranch, 142, 151; Johnson v. Blasdale 1 Sm. & M. 1; Tor-rev v. Fisk, 10 Sm. & M. 590; Smith v. Wyckof...
-Of The Nature And Effect Of Indorsement. Part 4
(n) Awde v. Dixon, 5 E. L. & E. 512; s. c. 6 Exch. 869; Evans v. Bremmer, 35 E. L. & E. 397; Prentiss v. Graves, 33 Barb. 621. (o) Fitch v. Jones, 5 E. & B. 238. See, for effect of illegality of co...
-Of The Nature And Effect Of Indorsement. Part 5
In the following cases it was held that the anomalous indorser would be presumed to be a co-maker. Good v. Martin, 95 U. S. 90; Heise v. Bumpass, 40 Ark. 545; Kiskad-den v. Allen, 7 Col. 206 , Gilpin ...
-Section II. Of The Essentials Of Negotiable Notes And Bills
Promissory notes were made negotiable in England by the statute of III. & IV. Anne; but it has been doubted there whether a note, payable to the maker's own order, was a negotiable note. (y)1 In this ...
-Of The Essentials Of Negotiable Notes And Bills. Part 2
In some of our States there are statutory provisions permitting negotiable paper to be under seal.l In Virginia every promissory note or check payable at a particular bank or banking-office, and ev...
-Of The Essentials Of Negotiable Notes And Bills. Part 3
In other jurisdictions it is held that the stipulation is valid, but that it makes the note uncertain in amount and thereby destroys its negotiability. Adams v. Seaman, 82 Cal. 637; Garretson v. Purdy...
-Of The Essentials Of Negotiable Notes And Bills. Part 4
1 A bill of exchange drawn in Canada and payable in New York in gold dollars, is negotiable. Chrysler v. Renois, 43 N. Y. 209. And in Black v. Ward, 27 Mich. 191, it was held that a note made and in...
-Of The Essentials Of Negotiable Notes And Bills. Part 5
(o) Hatch v. Trayes, 11 A. & E. 702; Grant v. Da Costa, 3 M. & Sel. 351; Benjamin v. Tillman, 2 McLean, 213; Bristol v. Warner, 19 Conn. 7; Poplewell v. Wilson, 1 Stra. 264; Lines v. Smith, 4 Fla. 47;...
-Section III. Who May Indorse
Only negotiable paper can be indorsed, in the technical and legal sense of this word; and an indorsement can be made only by the original payee or by some one who is made payee by indorsement to him. ...
-Who May Indorse. Part 2
(tv) As in New York, Spies v. Gilmore, 1 Comst. 321; Ellis v. Brown, 6 Barb. 282; Waterbury v. Sinclair, 26 id. 455; Cottrell v. Conklin, 4 Duer, 45. These decisions overrule the earlier ones in this ...
-Who May Indorse. Part 3
1 But one who makes a note payable to a married woman is estopped to deny her capacity to indorse. Smith v. Marsack, 6 C. B. 486; Cowton v. Wickersham, 54 Pa. 302, 304; Castor v. Peterson, 2 Wash. 204...
-Section IV. Of Indorsement After Maturity
Notes and bills are usually transferred by indorsement before they are due. But they may be so transferred after they are due, and before they are paid. There is, however, a very important difference ...
-Of Indorsement After Maturity. Part 2
1 Thus if he purposely refrains from making inquiries because he suspects something may be wrong, he is not protected. Daniel, Negot. Inst. 795 b. 2 The numerous cases on this point, showing...
-Of Indorsement After Maturity. Part 3
40 Ia. 136; Blake v. Koons, 71 Ia. 356; Hibernian Bank v. Everman, 52 Miss. 500. And see Warren v. Haight, 65 N. Y. 171; Hill v. Shields, 81 N. C. 250. Whether the maker or other obligor of paper w...
-Section V. Of Accommodation Paper
A party may be willing to lend his credit to another, when he cannot or does not wish to lend him money. He does this by signing or indorsing a note or bill without consideration. Such notes or bills ...
-Section VI. Notes On Demand
Notes and bills payable on demand are in one sense always overdue;2 they are not, however, so treated until payment has been demanded and refused, [or, in this country, until a reasonable time from th...
-Notes On Demand. Continued
1 This doctrine does not apply to bank notes. Bullard v. Bell, 1 Mas. 243, 252; Ballard v. Greenlmsh, 24 Me. 336,338; Fulton Bank v. Phoenix Hank, 1 Hall, 562, 577; 9 Op. Atty. Gen. 413. Nor to certif...
-Section VII. Of The Transfer Of Bills And Notes
A bill once paid by the acceptor can no longer be negotiated; but until paid by him it is capable of indefinite negotia-tion. (n)1 * If paid in part it may be indorsed as to the residue. But while who...
-Of The Transfer Of Bills And Notes. Continued
(v) Goupy v. Harden, 7 Taunt. 159. In this case it was held, that an agent purchasing foreign Kills for his principal, and indorsing them to him without qualification, is liable to the principal on bi...
-Section VIII. Of Presentment For Acceptance
Presentment for acceptance should be made by the holder or his authorized agent to the drawee or his authorized agent, (p) during the usual hours of business. (q) And the drawee has until the next day...
-Section IX. Of Presentment For Payment
A bill or note must be presented for payment at its maturity, or the indorsers are not held. They guarantee its payment, not by express words, but by operation of law. And for their protection the law...
-Of Presentment For Payment. Part 2
*Let us look at the exceptions to this rule requiring such presentment of a bill or note. Bankruptcy or insolvency, however certain or however manifested, is not one. (c) Though the bank or shop be sh...
-Of Presentment For Payment. Part 3
Perry v. Green, 4 Harrison, 61; Mechanics' Bank v. Griswold, 7 Wend. 165; Cod-dington v. Davis, 3 Denio, 16; Bond v. Farnham, 5 Mass. 170; Stephenson v. Primrose, 8 Port. (Ala.) 155. - Aliter, of only...
-Section X. Of Whom, When, And Where The Demand Or Presentment For Payment Should Be Made
Demand of payment should be made by the holder, or his authorized agent, of the party bound to pay, or his authorized agent; (u) and at his usual place of residence, or usual place of business; if the...
-Section XI. Of Notice Of Non-Payment
Where a bill is not accepted, or a bill or note is not paid at maturity, by the party bound then to pay it, all subsequent parties must have immediate notice of this fact.1 The contract of an indorser...
-Of Notice Of Non-Payment. Part 2
(n) Pierce v, Whitney, 29 Me. 188. for delay, would excuse or waive demand and notice. (o) The absconding or absence beyond reach of the party to be notified. (p)1 or ignorance of his residence. (q...
-Of Notice Of Non-Payment. Part 3
(v) The cases on this subject are numerous and obscure. 3 Kent, Com. 113, and Story, Prom. Notes, 357, and on Bills, 374, would seem to hold the taking of security a waiver of the notice...
-Of Notice Of Non-Payment. Part 4
(j) Morris v. Husson, 4 Sandf. 94; Bank of Louisiana v. Tournillon, 9 La. An. 132. (A) Seneca Bank v. Neass, 5 Denio, 329; Morton v. Westcott, 8 Cush. 425; Manchester Bank v. White, 10 Foster (N. 1...
-Of Notice Of Non-Payment. Part 5
Lewis v. Burr, 2 Caines Cas. 195; Barlow v. Planters' Bank, 7 How. (Miss.) 129; Offut v. Stout, 4 J. J. Marsh. 332. But if no grace is allowed, and the day on which the bill or note by its terms fails...
-Of Notice Of Non-Payment. Part 6
(x) Chard v. Fox, 14 Q. B. 200; Graham v. Sangston, 1 Md. 60; Mills v. Bank of United States, 11 Wheat. 431; Metcalfe v. Richardson, 20 E. L. & E. 301. (y) Mellersh v. Rippen, 11 E. L. & E. 499; Sm...
-Section XII. Of Protest
If a foreign bill be not accepted, or not paid at maturity, it must be protested at once; and this should be done by a notary public, to whose official acts under his seal, full faith is given in all ...
-Section XIII. On Damages For Non-Payment Of Bills
If a bill of exchange be not paid at maturity, the holder may at once redraw on the drawer or indorser, not only for the face of the bill, but for so much more as shall indemnify him; and therefore fo...
-Section XIV. Bills Of Lading
These documents are also by the law-merchant now treated as negotiable instruments to a certain extent. (aa) The master, by signing such bill, promises to deliver the goods to A or his assigns. If ...
-Section XV. Of Property Passing With Possession
By the common law, one who has no title to a chattel can give no title, except by a sale in market overt, which is not known ley v. Watling, 7 A. & E. 39, 2 Nev. & P. 178; Saltus v. Everett, 20 Wend. ...
-Of Property Passing With Possession. Continued
(k) Wain v. Bailey, 10 A. & E. 616; McGregory v. McGregory, 107 Mass. 543; Tucker v. Tucker, 119 Mass. 79. See King v. Zimmerman, L. R. 6 C. P. 466. 51; Force v. Elizabeth, 1 Stewart, 403; Exchange...
-Chapter XVII. Infants
In general, all persons may enter into contracts; and when a contract is made, the law presumes the competency of the parties. If, therefore, a party rests his action or his defence upon the incompete...
-Section I. Incapacity Of Infants To Contract
All persons are denominated infants, by the common law, until the age of twenty-one. But in some parts of this country in Maine,(e) in Missouri, (f) in Texas, (g) and, perhaps, in some others of our S...
-Incapacity Of Infants To Contract. Continued
(r) Langford v. Frey, 8 Humph. 443. (s) Cronise v. Clark, 4 Md. Ch. 403. See also McCarty v. Murray, 3 Gray, 578. (t) In Connecticut some contracts of an infant are made void by statute. Rogers ...
-Section II. Of The Obligations Of Parents In Respect To Infant Children
The obligation of the father to maintain the child is and always has been recognized, in some way and in some degree, 52; Darby v. Boucher, 1 Salk. 279; Pro-bart v. Knouth, 2 Esp. 472, n.; Beelor v...
-Of The Obligations Of Parents In Respect To Infant Children. Part 2
(i) In Baker v. Keen, 2 Stark. 501 (1819), Abbott, C. J., said: A father would not be bound by the contract of his son, unless either an actual authority were liability is nevertheless * admitted in ...
-Of The Obligations Of Parents In Respect To Infant Children. Part 3
If a father does any specific act, from which it may reasonably be inferred that he has authorized his son to contract a debt, he may be liable in respect of the debt so contracted; but the mere moral...
-Of The Obligations Of Parents In Respect To Infant Children. Part 4
In this country, the rule of law varies in the different States. In most of them in which the question has come before the courts, the legal liability of the parent for necessaries furnished to the in...
-Of The Obligations Of Parents In Respect To Infant Children. Part 5
This natural obligation, however, is not only a sufficient consideration for an express promise by a father to pay for necessaries furnished his child, hut when taken in connection with various circum...
-Of The Obligations Of Parents In Respect To Infant Children. Part 6
* It has been held in England that a father was under no legal obligation to educate his child, and could not be made liable for the expenses of his instruction, where the wife, being cruelly treated ...
-Of The Obligations Of Parents In Respect To Infant Children. Part 7
and in this country, might justify the conclusion that she is not under a legal obligation, (x)1 or that it is very greatly qualified in important particulars. Thus, if the * child has property, the m...
-Of The Obligations Of Parents In Respect To Infant Children. Part 8
(e) Emery v. Kempton, 2 Gray, 257. See, in this connection, Jenness v. Emerson, 15 N. H. 486. (f) Wodell v. Coggeshall, 2 Met. 89; Chilson v. Philips, 1 Vt. 41. (g) Jenness v. Emerson, 15 N. H. ...
-Section III. Voidable Contracts For Necessaries
As an infant is not permitted to enter into general contracts, because his immature judgment would expose him to injury, and as he is nevertheless permitted to contract for necessaries, because otherw...
-Voidable Contracts For Necessaries. Continued
2 Foster v. Redgrave, L. R. 4 Ex. 35; Barnes v. Toye, 13 Q. B. D. 410; Johnstone v Marks, 19 Q. B. D. 509; McKanna v. Merry, 61 Ill. 177, 180; Trainer v. Trumbull, 141 Mass. 527, 530; Decell v. Lewent...
-Section IV. Of The Torts Of An Infant
An infant is protected against his contracts, but not against his frauds or other torts. (s) But only for those committed by himself, and not for those of persons representing him, as he cannot have a...
-Of The Torts Of An Infant. Continued
1 That infancy is a bar to an action for false and fraudulent representations by a vendor or pledger as to his ownership of property sold or pledged, see Doran v. Smith, 49 Vt. 353, and 17 Am. Law Reg...
-Section V. Of The Effect Of An Infant's Avoidance Of His Contract
Every executory contract may be avoided by an infant, and then the adult dealing with him is relieved from his part of the contract; as if the contract were for the sale of a horse, by the infant, and...
-Section VI. Of Ratification
As the liability of the infant is defeated by the law, for his protection, therefore, as we have already seen, when he is of full age, he may, if he pleases, confirm and ratify a contract entered into...
-Of Ratification. Part 2
(p) Ford v. Phillips, 1 Pick. 202j Smith v. Mayo, 9 Mass. 64; Curtin v. Patton, 11 S & R.307; Harmer v. Killing, 5 Esp. 102; Brooke v. Gaily, 2 Atk. 34; 1 It has been held, however, in some cases, ...
-Of Ratification. Part 3
(uu) Henry v. Root, 33 N. Y. 526. (v) Parol ratification was claimed in Baylis v. Dinely, 3 M. & Sel. 477. But see contra, Hoyle v. Stowe. 2 Dev. & B. 320; Wheaton v. East, 5 Yerg. 41; Honser v. Re...
-Of Ratification. Part 4
A question has been raised in relation to ratification by an infant, whether, if the contract be one of those which is declared to be not voidable, but void, any ratification could restore it. And con...
-Section VII. Who May Take Advantage Of An Infant's Liability
It is a general rule that the disability of infancy is the personal privilege of the infant himself, and no one but himself or his legal representatives can take advantage of it. (c) * There- fore oth...
-Section VIII. Of The Marriage Settlements Of An Infant
The power of an infant in respect to marriage settlements has been much discussed. It seems to be determined, that a marriage settlement upon a female infant, and her release of dower in consideration...
-Section IX. Infant's Liability With Respect To Fixed Property Acquired By His Contract
It is of importance to know how the ordinary principles governing the contracts of infants are applied to the case where an interest in property, of a fixed and permanent nature, is vested in an infan...
-Section X. Of Illegitimate Children
All persons are illegitimate who are both begotten and born out of lawful wedlock. If begotten before wedlock, and born an hour after, they are legitimate at common law. By the statutes of most of our...
-Chapter XVIII. Of The Contracts Of Married Women. Section I. - Of The General Effect Of Marriage On The Rights Of The Parties
At common law the disability of a married woman is almost entire. Her personal existence is merged for most purposes in that of her husband. This was not so among the Anglo-Saxons, nor with the earlie...
-Section II. Of The Contracts Of A Married Woman Made Before Marriage
The contract of a married woman made before her marriage inures to the benefit of her husband; but does not vest in him absolutely. It is a chose in action, which he may reduce to his own possession d...
-Of The Contracts Of A Married Woman Made Before Marriage. Continued
The effect of an assignment in Bankruptcy and Insolvency is considered in the chapter on these subjects in the Third Volume. * Whether a creditor of the husband can acquire by attachment in a suit ...
-Section III. Of The Contracts Of A Married Woman Made During Her Marriage
By the rules of the common law, a married woman has no power to bind herself by contract, or to acquire to herself and for her exclusive benefit any right, by a contract made with her. And as she can ...
-Of The Contracts Of A Married Woman Made During Her Marriage. Part 2
(2) See Agents, ante, p. *49, note such in quality, and no more in quantity, than is suitable for the station and means of the husband, and the manner in which he permits her to live. But beyond thi...
-Of The Contracts Of A Married Woman Made During Her Marriage. Part 3
But if the articles be more or better than are necessary for the wife, still the husband may be held, not upon his authority as implied by the law, but upon sufficient evidence of his express authorit...
-Of The Contracts Of A Married Woman Made During Her Marriage. Part 4
(h) Manby v. Scott, l Sid. 122: Bac Abr. Baron & Feme (H.); Etherington v. Parrot, 2 Ld. Raym. L006, 1 Salk. 118; Bolton v. Prentice, Stra. 1214; Reneaux v. Teakle, 8 Exch. 680. (i) Lord Hale, i...
-Of The Contracts Of A Married Woman Made During Her Marriage. Part 5
(/) Cotes v. Davis, 1 Camp. 485; Barlow v. Bishop, 1 East, 432; Prestwick v. Marshall, 7 Bing. 565. His authority to her to make notes in his name cannot, however, be inferred from the mere fact that ...
-Of The Contracts Of A Married Woman Made During Her Marriage. Part 6
(o) In the case of Harwood v. Heffer, 3 Taunt. 421, where the evidence was that the husband treated the wife with great cruelty, and confined her in her chamber under pretence of insanity, and had tak...
-Of The Contracts Of A Married Woman Made During Her Marriage. Part 7
(t) See Hunter v. Boucher, 3 Tick. 291. If the wife leaves the husband without just cause, and refuses * to cohabit with him, then it is certain that she loses all right to a maintenance from him. ...
-Of The Contracts Of A Married Woman Made During Her Marriage. Part 8
(d) Mortimer v. Mortimer, 2 Hagg. Cons. 318. In this case Sir William Scott, in commenting upon a plea in bar to a suit for the restitution of conjugal rights, observed: The seventh and eighth artic...
-Of The Contracts Of A Married Woman Made During Her Marriage. Part 9
(g) Summers v. Ball, 8 M. & W. 596, where a deed of separation between husband and wife contained a covenant by the wife and her trustees, that she, her executors or administrators, or the trustees, o...
-Of The Contracts Of A Married Woman Made During Her Marriage. Part 10
If there be separation by consent, and a specific sum settled upon the wife, which is reasonably sufficient for her necessities, then the husband is not liable for necessaries supplied to her. (o) Nor...
-Of The Contracts Of A Married Woman Made During Her Marriage. Part 11
(u) Turner v. Rookes, 10 A. & E. 47. This was an action of assumpsit to recover for services rendered by the plaintiff, as solicitor, to the defendant's wife, in exhibiting articles of the peace again...
-Of The Contracts Of A Married Woman Made During Her Marriage. Part 12
1 So a husband unsuccessfully prosecuting his wife, to compel her to find sureties to keep the peace, is liable for the reasonable fees of her attorneys, as necessaries. Warner v. Heiden, 28 Wis. 517....
-Section IV. Of The Disability Of A Wife To Act As A Single Woman
This disability is almost entire at common law. The usages of this country, recognized more or less distinctly by the courts, have lessened this somewhat, and the recent legislation of most of the Sta...
-Section V. Of The Separate Estate Of A Married Woman, And Of Settlements In Her Favor
If the wife has a separate estate, this is usually reached in equity. Thus, if she join with her husband in making a promissory note, this separate estate is chargeable with it. (s)1 Perhaps, however,...
-Synopsis
Of the Statutes in the different Slates and Territories and the District of Columbia concerning the Rights and Powers of Married Women, and of the Husband in relation to his Wife's Property. In Ala...
-Synopsis. Part 2
In Colorado, all of a married woman's property at the marriage, with its profits, and all received afterwards by descent, devise, or bequest, or by gift of any person except her husband, including how...
-Synopsis. Part 3
In Delaware, a married woman, her husband joining, may convey her land, but must acknowledge the same apart from her husband, Code of 1874, pp. 478, 501, 1469, 1614. Her real estate, mort...
-Synopsis. Part 4
In Idaho, all the property of a wife, owned before or acquired alter marriage by gift, bequest, devise, or descent, is her separate property, Revised Statutes of L887, 2495. So of the husband, ...
-Synopsis. Part 5
In Iowa, a married woman may convey and contract about her real estate like other persons, Revised Code of 1888, Tit. 13, c. 5, 1935. The conveyance of husband and wife together passes all the ...
-Synopsis. Part 6
In Louisiana, a married woman, even if separate in estate from her husband, cannot alienate, grant, mortgage, or acquire, by gratuitous or incumbered title, unless he concurs or gives his written cons...
-Synopsis. Part 7
In Maryland, a married woman's property, real and personal, at the marriage, or after acquired by purchase, gift, grant, devise, bequest, or inheritance, is free of her husband's debts; but no transfe...
-Synopsis. Part 8
In Michigan, a married woman's property at the marriage and afterwards acquired in any way is her estate free of her husband's debts, and may be contracted about, sold, transferred, mortgaged, conveye...
-Synopsis. Part 9
In MISSOURI, a married woman, deserted or whom her husband fails to support, may, by leave of court, sell and convey her real estate or any undisposed-of personal estate, which he has in her right, or...
-Synopsis. Part 10
In Nevada, all the property of a married woman at the marriage or after acquired by gift, bequest, devise, or descent, with its profits, is her separate property, which, with the exception of money, m...
-Synopsis. Part 11
In New Mextco, all property owned by any married woman before marriage continues her separate property, and she may receive, bold, and enjoy property of every kind and all avails of her industry free ...
-Synopsis. Part 12
In Ohio, the husband must support his wife and minor children, but if unable his wife must assist him as far as she is able. Revised Statutes of 1890, 3110. Neither has any interest in the othe...
-Synopsis. Part 13
In South Carolina, a married woman's property, at the marriage or after acquired in any way, is her separate property free of her husband's debts, General Statutes of 1882, 2035. Acts of 1887, ...
-Synopsis. Part 14
In Virginia, all the property, including rights of action, possessed by a woman at the time of her marriage, or acquired afterwards in any manner, is her separate estate, but no right of action agains...
-Synopsis. Part 15
In Wyoming, a married woman's property at the marriage, and afterwards acquired in any way other than from her husband, is her separate property, and may be enjoyed by her as if unmarried, free from t...
-Chapter XIX. Persons Of Insufficient Mind To Contract. Section I. - Non Compotes Mentis
They who have no mind, cannot agree in mind with another; and, as this is the essence of a contract, they cannot enter into a contract. But there is more difficulty when we consider the case of thos...
-Persons Of Insufficient Mind To Contract. Non Compotes Mentis. Part 2
A lunatic is under a quasi contractual obligation to pay for necessaries furnished his wife, similar to his obligation to pay for necessaries furnished himself. Read . Legard, 6 Ex. 636; Pe...
-Persons Of Insufficient Mind To Contract. Non Compotes Mentis. Part 3
(/) Gore v. Gibson, 13 M. & W. 623. See ante, p. n. 2 (g) McCrillis v. Bartlett, 8 N. H. 569. See Smith v. Spooner, 3 Pick. 229; Man-son v. Felton, 13 Pick. 206. (h) Richardson v. Strong, 13 Ire...
-Persons Of Insufficient Mind To Contract. Non Compotes Mentis. Part 4
evidence as to other parties. (k) But it has been held, that even where the statute expressly declares all the contracts of a lunatic under guardianship void, or disables him from entering into contra...
-Section II. Spendthrifts
In regard to these persons, the appointment of a guardian, and the depriving them of all power over their own property, is generally put on the ground of a danger that they may become chargeable to th...
-Section III. Seamen
The reckless and improvident habits of seamen, and their inability to protect themselves against the various parties with whom they deal, have induced courts both of law and equity to extend to them a...
-Section IV. Persons Under Duress
A contract made by a party under compulsion is void;1 because consent is of the essence of a contract, and where there is compulsion there is no consent, for this must be voluntary. (t) Such a contrac...
-Persons Under Duress. Continued
1 If one knowing he has not a just claim against another arrests him or attaches his goods, a payment by the latter to release himself or his goods is a payment under duress and may be recovered. Roll...
-Chapter XX. Aliens
An alien, by the definition of the common law, is a person born out of the jurisdiction and allegiance of this country, excepting only the children of public ministers abroad, whose wives are American...
-Chapter XXI. Of Outlaws, Persons Attainted, And Persons Excommunicated
The process of Outlawry was common in England under the Saxon kings. By it a person was placed wholly out of the protection of the law, so that he was incapable of bringing any action for redress of i...
-Consideration And Assent. Chapter I. Consideration. Section I. - The Necessity Of A Consideration
A promise for which there is no consideration cannot be enforced at law. This has been a principle of the common law from the earliest times. (a)1 It is said to have been borrowed from the Roman law. ...
-Section II. Kinds Of Consideration
The civil law division of all considerations into four species, very clearly stated by Blackstone, is logically exact and exhaustive; (n) but it has never been so far introduced into the com(k) Seherm...
-Kinds Of Consideration. Part 2
(r) Lord Tenterden, C. J., in Gully v. Bishop of Exeter, 10 B. & C. 606; Chitty on Cont. 28. (s) Noble v. Smith, 2 Johns. 52; Grangiae v. Arden, 10 Johns. 293; Pitts v. Mangnn, 2 Bailey, 588; Pears...
-Kinds Of Consideration. Part 3
So in Frear v. Hardenbergh, 5 Johns. 272, a promise to pay for labor of the plaintiff on land recovered from him by the defendant in a suit at law was held void for want of consideration. This case wa...
-Section III. Adequacy Of Consideration
If the consideration is valuable it need not be adequate; that is, the court will not inquire into the exact proportion between the value of the consideration and that of the thing to be done for it. ...
-Adequacy Of Consideration. Continued
To this general rule there is one exception. Payment or promise of payment of a smaller sum of money is not a sufficient consideration for an immediate obligation to pay a greater sum. See vol ii., 82...
-Section IV. Prevention Of Litigation
The prevention of litigation is a valid and sufficient consideration; for the law favors the settlement of disputes. (/) Thus, cient consideration for a promise to pay them more than the legal fees. D...
-Section V. Forbearance
An agreement to forbear for a time, proceedings at law or in equity, to enforce a well-founded claim, is a valid consideration for a promise. (u) But this consideration fails if it be shown * that the...
-Forbearance. Part 2
Ex parte Banner, 17 Ch. D. 480, (C. A. 1881) did not really involve the question because the claim forborne in that case was not simply unfounded, but known by the claimant to be so. But the language ...
-Forbearance. Part 3
So in a recent case where several heirs knowing that their deceased ancestor had taken out a policy of life insurance in the name of one of them, but not knowing in the name of which one, agreed that ...
-Section VII. Work And Service
Work and service are a very common consideration for a prom -ise, and always sufficient, if rendered at the request of the party promising. (q) This request may often be implied; it is so, generally, ...
-Section VIII. Trust And Confidence
Trust and confidence in another often form a sufficient consideration to hold that other to his undertaking. As if one intrusts money, goods, or property of any kind, to any person, on the faith of th...
-Section IX. A Promise For A Promise
A promise is a good consideration for a promise. (x)1 And it is so previous to performance and without performance. As, if one promises to become a partner in a firm, and another promises to receive h...
-A Promise For A Promise. Continued
*This has been doubted, from the seeming want of mutuality in many cases of contract. As where one promises to see another paid, if he will sell goods to a third person; or promises to give a certain ...
-Section X. Subscription And Contribution
Where several promise to contribute to a common object, desired by all, the promise of each may be a good consideration for the promise of the others. (h) 1 If there be a chartered (f) Holt v Ward ...
-Subscription And Contribution. Continued
7. Lastly it has been held that from the acceptance by the beneficiary or its trustees of a subscription a promise is implied to execute faithfully the object subscribed for. Collier v. Baptist Educat...
-Section XI. Of Consideration Void In Part
It sometimes happens that a consideration is void in part; and the question arises whether this fact makes the whole consideration invalid, and the promise itself of no obligation. If one or more of s...
-Section XII. Illegality Of Consideration
In general, if any part of the entire consideration for a promise, or any part of an entire promise, be illegal, whether by statute or at common law, the whole contract is void. (p) Indeed the courts ...
-Section XIII. Impossible Considerations
Impossible considerations are wholly bad and insufficient. We have seen that a consideration which one cannot perform without a breach of the law is bad, and so is one which cannot be performed at all...
-Section XIV. Failure Of Consideration
When the consideration appears to be valuable and sufficient, but turns out to be wholly false or a mere nullity, or where it may have been actually good, but before any part of the contract has been ...
-Failure Of Consideration. Continued
(l) Thus, in Adlard v. Booth, 7 C. & P. 108, it was held, that where a printer has been employed to print a work, of which the impression is to be a certain number of copies, if a fire break out and c...
-Section XV. Eights Of A Stranger To The Consideration
In some cases, in which the consideration did not pass directly from a plaintiff, and the promise was not made directly to him, it has been made a question how far he might avail himself of it, and br...
-Section XVI. The Time Of The Consideration
Considerations may be of the past, of the present, or of the future. When the consideration and the promise founded upon it are simultaneous, then the consideration is of the present time; the whole a...
-The Time Of The Consideration. Part 2
(b) Jeffreys v. Gurr, 2 B. & Ad. 833; Pownal v. Ferrand, 6 B. & C. 439. In this case the indorser of a bill being sued by the holder, paid him part of the sum mentioned in the bill; and it was held, t...
-The Time Of The Consideration. Part 3
1 In Pool v. Horner, 64 Md. 131, the parties intended to enter into an enforceable contract, but failed to do so on account of the Statute of Frauds. Subsequently the plaintiff having performed all th...
-Chapter II. Assent Of The Parties. Section I.- What The Assent Must Be
There is no contract, unless the parties thereto assent; and they must assent to the same thing, in the same sense. (a)1 A (a) Hazard v. New England Marine Ins. Co. 1 Sunnier, 218. In Bruce v. Pear...
-Assent Of The Parties. Section I.- What The Assent Must Be. Part 2
(cd) Smith v. Morse, 20 La. An. 220; Brogclen v. Metropolitan Ry. Co. 2 App. Cas. 666; Boyd v. Brinckin, 55 Cal. 427; Pickrel v. Rose, 87 Ill. 263; Baines v. Shoemaker, 112 Ind. 512; Botkin v. Mcln-ty...
-Assent Of The Parties. Section I.- What The Assent Must Be. Part 3
It frequently happens that the terms of a proposed agreement are discussed not with a view to an immediate obligation, but with a view to the execution of a formal contract. In such cases agreement up...
-Section II. Contracts On Time
Propositions or offers on time involve questions of the assent of parties which are sometimes difficult. (/) Strictly speaking, tion is relied upon as proof of an agreement, it is for the jury to deci...
-Contracts On Time. Part 2
(m) Judd v. Day, 50 Ia. 247; Troun-stine v. Sellers. 35 Kan. 447; Peree v. Turner, 10 Me. 185; Park v. Whitney, 148 Mass. 278; Stone v. Harmon. 31 Minn. 512; Beckwith v. Cheever, 21 N. H. 41; Chicago,...
-Contracts On Time. Part 3
An analogous and closely connected question has arisen, where the proposition and the reply are both made by letter. And as we think, it must be governed by the same principles. It is unquestionably t...
-Contracts On Time. Part 4
18 Dunlop, 1; Tayloe v. Merchants' Fire Ins. Co. 9 How. 390; Kempner v Cohn, 47 Ark. 519; Bryant v. Booze, 55 Ga. 438; Haas v. Myers, 111 Ill.421; Kentucky Mut Ins. Co. v. Jenks, 5 Ind. 96; Hunt v....
-The Subject-Matter Of Contracts. Chapter I. Preliminary Remarks
The subject-matter of every contract is something which is to be done, or which is to be omitted. No very precise or logical division and classification of these various things is known to the common ...
-Chapter II. Purchase And Sale Of Real Property
Conveyances of real property are made by deed; but simple contracts are often made for the purchase of real estate, and the specific performance of these contracts may be enforced in equity, (a) or ac...
-Purchase And Sale Of Real Property. Part 2
(fg) Linker v. Long, 64 N. C. 296; Parshall v. Shirts, 54 Barb. 99. (fh) Abbott v. Alsdorf, 19 Mich. 157. In Fewell v. Kessler, 30 Ind. 195, the deed was executed and acknowledged and left with the...
-Purchase And Sale Of Real Property. Part 3
If an estate be sold in separate lots, and one person buy many lots, there is, by the later adjudications and the better reasons, a distinct contract for each lot. (m) But where the contract is writte...
-Purchase And Sale Of Real Property. Part 4
At an auction the contract of sale is not completed until the * auctioneer knocks the property down to the purchaser; for he is the agent of the vendor, and this is his assent to the offer of the purc...
-Chapter III. Hiring Of Real Property. Section I. - Of The Lease
The hiring of real property is usually effected by means of a lease, which is a contract, whereby one party - the tenant - has the possession and profits of the land, and the other party - the landlor...
-Section II. Of The General Liabilities Of The Lessor
There is an implied covenant on the part of the lessor to put the lessee into possession, 1 and that he shall quietly enjoy. (e) 2 But unless the demise be under seal there is no implied covenant for ...
-Section III. Of The General Liability And Obligation Of The Tenant
The words reserving, or yielding, or paying, a rent, or any phraseology distinctly showing the intention of the parties that rent should be paid, imply a covenant or a promise on the part of th...
-Of The General Liability And Obligation Of The Tenant. Part 2
341. 1 A lessee from year to year holding over becomes a trespasser or continues to he a tenant, as the landlord elects. Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151 - K. (a) Ferguson v. -----...
-Of The General Liability And Obligation Of The Tenant. Part 3
(n) McKenzie v. McLeod, 10 Bing. 385. (o) Crusoe v. Bugby, 2 W. Bl. 766; s. c. 3 Wils. 234; Kinnersley v. Orpe, Dougl. 56; Church v. Brown, 15 Ves. 258, 265; Eten v. Luyster, 60 N. Y. 252; Shaw v. ...
-Of The General Liability And Obligation Of The Tenant. Part 4
(u) Dann v. Spurrier, 3 B. & P. 399; Goodright v Richardson, 3 T. R. 462. Where a house was leased at a certain rent, to be paid quarterly, or half quarterly if required, and the tenant entered and ...
-Section IV. Of Surrender Of Leases By Operation Of Law
Such surrender takes place when the lessee does something incompatible with the lease, and the lessor assents or co-operdistillery refused to give the lessee a United States certificate, Grabenhorst v...
-Section V. Of Away-Going Crops
A tenant whose estate is terminated by an uncertain event which he could neither foresee nor control, is entitled to the annual crop which he sowed while his estate continued, by the law of emblements...
-Section VI. Of Fixtures
The tenant may annex some things to the freehold, and yet retain the right to remove them. These things are called Fixtures. (s)1 There are no precise and certain rules, by which we can always determi...
-Section VII. Of Notice To Quit
A tenant whose tenancy may be determined by the will of the landlord, is entitled to notice of that determination, nor can *he be dispossessed by process of law, without that previous notice. 1 In Eng...
-Of Notice To Quit. Continued
145 Notice by a lessor will enure to the benefit of his assignee. Glenn v. Thompson, 75 Penn. St 389. Payment of rent in advance does not dispense with notice. Sprague v. Quinn, 108 Mass 553 If a tena...
-Section VIII. Of Apportionment Of Rent
The lessor holds only the reversion, the lessee having the land. It is common to speak of the lessor who makes a sale of the premises, as selling the land; but in law, all he can sell is his right to ...
-Section IX. Of Remedy For Non-Payment Of Rent
We have already spoken of the right of re-entry, which only prevents the accruing of further rent. For rents due and unpaid the common law provided what Chancellor Kent calls the summary and somewha...
-Chapter IV. Purchase And Sale Of Personal Property. Section I. - Essentials Of A Sale
All that is essential to the sale of a chattel, at common law, is the agreement of the parties that the property in the subject-matter should pass from the vendor to the vendee for a consideration giv...
-Section II. Absolute Sale Of Chattels
A sale of a chattel is an exchange thereof for money; but a sale is distinctly discriminated in many respects from an exchange in law; an exchange being the giving of one thing and the receiving of an...
-Absolute Sale Of Chattels. Continued
The thing sold need not be in the possession of the vendor, and if it has been tortiously converted, the owner may sell it, and give title, and the purchaser may after demand and refusal maintain trov...
-Section III. Price And Agreement Of Parties
The price to be paid must be certain, or so referred to a definite standard that it may be made certain; (p)1 as what another * man has given; or what another man shall say should be the price; but if...
-Section IV. The Effect Of A Sale
Upon a completed sale the property in the thing sold passes to the purchaser; one of these things implies the other; if the * property passes then it is a completed sale; and if a completed sale then ...
-The Effect Of A Sale. Part 2
(a) Blackshear v. Burke, 74 Ala. 239; Obermeier v Core, 25 Ark. 562; McNail v. Ziegler, 68 Ill. 224; Freeman v. Nichols. 116 Mass. 309; Mackaness v. Long, 85 Pa. 158. Mere delivery of part will not...
-The Effect Of A Sale. Part 3
(e) McConike v. N. Y. & E. R. R. Co., 20 N. Y. 495. See post, chapter on Liens. (f) Tarling v. Baxter, 6B.&C. 360; Gillet v. Hill, 2 Cr. & M. 535; Zagury v. Furuell, 2 Camp. 240; Wallace v. Breeds,...
-Section V. Of Possession And Delivery
While, as between the parties, the property passes by a sale without delivery, if such is the intention, (kl) it is not valid, in general, as against a third party without notice, without delivery. Fo...
-Of Possession And Delivery. Part 2
The delivery may be symbolical, or of a part for the whole; (n) 1 and a delivery of the key, the property being locked up, is so far a delivery of the goods, that it will support an action of trespass...
-Of Possession And Delivery. Part 3
Where goods to be delivered, in payment of a debt, are in readiness for delivery, and the buyer requests the seller to keep them for him, this is a delivery which vests the property in the creditor. (...
-Of Possession And Delivery. Part 4
P. Wms, 186, and in Yale v, Bayle, supra, Lord Chief Justice Eyre is said to nave held, That though a trader in the country does not appoint a carrier, yet if the goods be embezzled he shall be liabl...
-Of Possession And Delivery. Part 5
(e) McLean v. Dunn, 4 Bing. 722; Mertens v. Adcock, 4 Esp. 251; Girard v. Taggart, 5 S. & R. 19; Sands v. Taylor, 5 Johns. 395. (f) Crooks v. Moore, 1 Sandf. 279; Conway v. Bush, 4 Barb. 564. (g...
-Section VI. Conditional Sales
In every sale, unless otherwise expressed, there is an implied condition that the price shall be paid, before the buyer has a right to possession; and this is a condition precedent.(m)1 But it (m) ...
-Conditional Sales. Part 2
And generally, wherever in a contract of sale it * is stated that some precise fact is to be done by either party, this may amount to a condition, though not so expressed. As where, in a contract for ...
-Conditional Sales. Part 3
In some States, however, not only innocent purchasers from the vendee acquire a title superior to that of the vendor but attaching creditors of the vendee are also preferred. Brundage v. Camp, 21 Ill....
-Section VII. Of Bought And Sold Notes
Much of the commercial business of the country is transacted by the agency of brokers, who buy and sell goods for others, on commission. Though employed at the outset by only one of the parties, a mer...
-Of Bought And Sold Notes. Part 2
(e) Zachrisson v. Poppe, 3 Bosw. 171. (f) Saunderson v. Jackson, 2 B. & P. 238'; Schneider v. Norris, 2 M. & Sel. 286, per Ld. Eldon, C J. And see Board-man v. Spooner, 13 Allen, 353; Brayley v. Ke...
-Of Bought And Sold Notes. Part 3
Where upon a sale of goods the vendor produces a sample and row, 2 C. & P 544; s. c. 4 Bing. 85, and 12 Moore, 266, per Hullock; B , in Henderson v. Barnewall, 1 Y. & J 394; but see Burrouqh, J., 12 M...
-Of Bought And Sold Notes. Part 4
Where the contract is made through the agency of two brokers, one acting for the vendor and the other for the purchaser, and the sold note given by the purchaser's to the vendor's broker, states, that...
-Section VIII. Of Sales To Arrive
A very common form of contract at the present day is a sale of goods to arrive. This is a sale of merchandise expected from abroad, effected before arrival, the condition being that the thing sold ...
-Of Sales To Arrive. Part 2
* Ordinarily, a sale to arrive by a specified vessel does not pass any property in any specific chattel on board the vessel at the time the bargain was made; it being merely an agreement for the sale ...
-Of Sales To Arrive. Part 3
If the sale is of a definite quantity or number, as so many hundred bags of an article, the contract is not apportionable, and the vendor cannot recover damages for a refusal to take any quantity or n...
-Of Sales To Arrive. Part 4
(w) Shields v. Pettie, 2 Sandf. 262, 4 Comst. 122. This was an action of assumpsit for a quantity of pig iron, sold and delivered; but the case turned upon * A verbal contract for the sale of goods...
-Of Sales To Arrive. Part 5
(y) Hawes v. Lawrence, 4 Comst. 346. The plaintiff, through a broker, sold the defendant a quantity of linseed oil, as stated in the sale notes, to arrive per ship Marcia from Liverpool, sailed on o...
-Of Sales To Arrive. Part 6
(//) Per Cowen, .J.. in Wright v. Hary, A contract for a sale of goods to be delivered on their arrival, at any time before a specified date, does not render the vendor liable for the non-delivery ...
-Of Sales To Arrive. Part 7
(h) Splidt v. Heath, 2 Camp. 57, n This was an action for the non-delivery of certain quantities of St. Petersburg hemp, to be shipped on or before the 31st August, O. S., in ships to be named by t...
-Of Sales To Arrive. Part 8
Eng., her port of call, in good season. The plaintiff then paid the full price for the cargo, received the shipping documents and sent the vessel to Amsterdam, her port of discharge. The plaintiff ...
-Section IX. Mortgages Of Chattels
Sales of chattels, by way of mortgage, constitute a very important, and in recent times a very frequent, class of sales on condition. (o) [A mortgagor of personalty, like a mortgagor of realty, has an...
-Mortgages Of Chattels. Continued
(s) Jones v. Richardson, 10 Met. 481. In this case the property mortgaged was thus described, namely: The whole stock in trade of said A., as well as each and every article of merchandise which the s...
-Chapter V. Warranty
The warranties which accompany a sale of chattels are of two kinds in respect to their subject-matter; they are a warranty of title and a warranty of quality. They are also of two kinds in respect to ...
-Warranty. Part 2
1 A warranty of title is implied in case of an exchange as well as in case of a sale. Hunt v. Sackett, 31 Mich. 18; Patee v. Pelton, 48 Vt 182, Byrnside v. Burdett, 15 W. Va. 702. (d) This must be ...
-Warranty. Part 3
(/) In the recent case of Sherman v. Champlain Trans. Co., 31 Vt. 162, it is laid down as settled law by Redfield, C. J., that in a sale of personal property there is always an implied warranty of tit...
-Warranty. Part 4
(i) Mixer v. Coburn, 11 Met. 559; Winsor v. Lombard, 18 Pick. 59; Parkinson v. Lee, 2 East, 321; Stuart v. Wil-kins, Dougl. 20; Johnson v. Cope, 3 Har. & J. 89; Seixas v. Woods, 2 Caines, 48; Holden v...
-Warranty. Part 5
* As mere silence implies no warranty, neither do re- '70 marks which should be construed as simple praise or condemnation; (l) but any distinct assertion or affirmation of quality made by the * owne...
-Warranty. Part 6
The rule on the subject of representations recently laid down in Pennsylvania is substantially this: if the parties to a sale are not in a condition of perfect equality as to their ability to judge ac...
-Warranty. Part 7
To give it the effect of a warranty. it must be shown to the satisfaction of the jury that the parties intended it to have mendatio), which neither by the common law nor by the civil law impose any ob...
-Warranty. Part 8
(p) Carson v. Bailie, 19 Penn. St. 375; Lord v. Grow, 39 Penn. St. 88. (pp) Brown v. Bigelow, 10 Allen, 242. (pq) Berans v. Farrell, 18 La. Ann. 232. 1 Where there is no opportunity to inspec...
-Warranty. Part 9
(ss) McClung v. Kelley, 21 Iowa, 508. Mich. 397; Hoe v. Sanborn, 21 N. Y. 552; Gaylord Mfg. Co. v Allen, 59 N. Y. 515, 518; Lewis v. Rountree, 78 N. C. 323; Holloway v. Jacoby, 120 Pa. 583; Gerst v...
-Warranty. Part 10
(u) Ormrod v. Huth, 14 M. & W. 651. (v) Parkinson v. Lee, 2 East, 314, is a very important case upon this subject, which has been much discussed, and sometimes doubted, but which, when properly und...
-Warranty. Part 11
1 Jones v. Padgett, 24 Q. B. D. 650, Pacific Guano Co. v Mullen, 66 Ala. 582; Snow v. Schomacker Co., 69 Ala.111; Curtis, etc. Mfg. Co. v Williams, 48 Ark 325; ciple *has been carried very far. It mus...
-Warranty. Part 12
Pacific Iron Works v. Newhall, 34 Conn 67; Wilcox Co. v. Owens, 64 Ga. 601 (statutory); Chicago Packing Co v Tilton. 87 Ill. 547; Poland v. Miller, 95 Ind. Conant v Nat. Bank. 121 Ind. 323; Blackmore ...
-Warranty. Part 13
(d) Hart v. Windsor. 12 M. & W. 68; Sutton v. Temple, 12 M. & W. 52, where the subject is very ably examined and in writing, and contains no warranty, there parol evidence is not admissible to add a w...
-Warranty. Part 14
Ships often are, and any property may be, sold with all faults. This is an emphatic exclusion of all warranty. lint it gives the seller no right to commit a fraud, nor will it prevent the sale from ...
-Warranty. Part 15
& M. 290. But a defective formation, or badness of shape, which has not produced lameness at the time of sale, although it may render the horse liable to become lame at some future time (e. g. curby...
-Warranty. Part 16
When a seller with warranty brings an action for the price, it seems to be settled in England that a mere breach of warranty, which is not accompanied with fraud, or does not go to destroy the identit...
-Chapter VI. Stoppage In Transitu. Section I. - What The Right Of Stoppage Is, And Who Has It
If a vendor, who has sent goods to a purchaser at a distance, finds that the purchaser is insolvent, he may stop the goods at any time before they reach the purchaser. This right is called the right o...
-What The Right Of Stoppage Is, And Who Has It. Part 2
(d) Thompson v. Thompson, 4 Cush. 134; Shore v. Lucas, 3 Dow. & R, 218, Bayly v. Schofield, 1 M. & Sel. 338; Secomb v. Nutt, 14 15. Mon. 326. (e) 2 Kent, Com. 548. Hut the right exists only in case...
-What The Right Of Stoppage Is, And Who Has It. Part 3
It has been much disputed whether this is a right to rescind the sale, (k) or only an extension of the common-law Lien of the seller. (/) The difference is important. If stoppage in transitu rescinds ...
-Section II. When And How The Right May Be Exercised
The general rule is that this right exists as long as the goods are in transitu. But it is sometimes difficult to determine whether the goods which it is sought to stop are still in transitu. (y)1 ...
-When And How The Right May Be Exercised. Part 2
(a) Northey v. Field, 2 Esp. 613; Nix v. live, cited in Abbott on Shipping, 490; Mottram v. Heyer, .5 Denio. 629; Cartwright v. Wilmerding, 24 N. Y. 521. Lewis v. Mason. 36 Up. Can Q. B....
-When And How The Right May Be Exercised. Part 3
is also a clear illiistration of the rule of So, if by the bill of lading the goods are deliverable to the order of the consignor or his assigns, the property therein does not pass to the consignee...
-When And How The Right May Be Exercised. Part 4
(o) See ante, p. * 289, and post, vol. ii , p. * 291, *292. (p) Small v. Moates, 9 Bing. 574; Dixon v. Yates, 5 B. & Ad. 313; Jen-kyns v. Usborne, 7 Man. & G. 678. The case of Thompson v. Dominy, 1...
-When And How The Right May Be Exercised. Part 5
* possession, is in no better position than the first vendee, under whom he claims; and the goods may be taken from him by the first vendor, on the insolvency of the first vendee And if the bill of la...
-Chapter VII. Guaranty Of Suretyship. Section I. What Is A Guaranty
Originally, the words warranty and guaranty were the same; the letter g, of the Norman French, being convertible with the w of the German and English, as in the names William or Guillaume. They are no...
-Guaranty Of Suretyship. Section I. What Is A Guaranty. Continued
* of the guarantor is measured by that of the principal, and will be so construed, unless a less or a larger liability is expressly assumed by the guarantor; as if he guaranteed payment of a note by a...
-Section II. Of The Consideration
Although the promise to pay the debt of another be in writing,1 it is nevertheless of no force unless founded upon a consideration. (o)2 It is itself a distinct contract, and must rest * upon its own ...
-Section III. Whether A Promise Is Original Or Collateral
It often happens that what appears to be a promise to pay the debt of another is not in writing, but is nevertheless enforced by the courts on the ground that it is an original promise, and not a coll...
-Section IV. Of The Agreement And Acceptance
The contract of guaranty, like every other contract, implies two parties, and requires the agreement of both parties to make it valid. In other words, a promise to pay the debt of another is not valid...
-Section V. Of The Change of Liability
The guarantor cannot be held to any greater extent than the original debtor, either in point of amount or of time. (h) 2 Nor can this liability be extended or enlarged by operation of law or by statut...
-Of The Change of Liability. Part 2
(k) Union Bank v. Ridgely, 1 Har. & G. 324, which was an action against the sureties of a cashier for the faithful performance of his duties. The charter of the bank expired, and was extended by a new...
-Of The Change of Liability. Part 3
Paine, 46 Ia. 550; or that interest should be payable annually, Marsh v. Griffin. 42 Ia. 403; or semi-annually, Fulmer v. Seitz, 68 Penn. St. 237; or where a creditor without the surety's consent ...
-Of The Change of Liability. Part 4
& 6., and held by B, and bound A to save B harmless from all loss which B might sustain by reason of holding paper indorsed by said firm. The partnership of S. M. & G. was afterwards dissolved, of whi...
-Of The Change of Liability. Part 5
(w) See Cremer v. Higginson, 1 Mason, 323, which is a leading case on this subject. In this case, the letter of guaranty contained this clause: The object of the present letter is to request you if c...
-Section VI. How A Guarantor Is Affected By Indulgence To A Debtor
A guarantor is entitled to a just protection. But this principle is not carried so far as to permit him to compel the creditor unreasonably to proceed against the principal debtor. (x) 1 Prom some cas...
-How A Guarantor Is Affected By Indulgence To A Debtor. Part 2
(a) Pain v. Packard, 13 Johns. 174. And see People v. Jansen, 7 id. 336. In Herrick v. Borst, 4 Hill (N. Y.), 650, it was held, that although the creditor neglect to prosecute the principal after a re...
-How A Guarantor Is Affected By Indulgence To A Debtor. Part 3
* A guarantor or surety has a right to expect that the creditor will not wantonly lose or destroy his claims against the principal debtor, with the intention of falling back upon the liability of the ...
-How A Guarantor Is Affected By Indulgence To A Debtor. Part 4
Thus, the neglect of postmasters to sue for * balances due them does not discharge their sureties. (g) Nor does the continuance in office of a cashier or treasurer, by a corporation after discovery of...
-Section VII. Of Notice To The Guarantor
A guaranty may be extinguished or discharged by the fact that the guarantee gives no notice to the guarantor of the failure of the ment with the principal promisor, without the consent of the surety, ...
-Section VIII. Of Guaranty By One In Office
If a guaranty be made by one expressly in an official or special capacity, as attorney, executor, guardian, assignee, trustee, churchwarden, or the like; and the guarantor holds such office, and has a...
-Section IX. Of Revocation Of Guaranty
A promise of guaranty is always revocable at the pleasure of the guarantor by sufficient notice, unless it be made to cover some specific transaction which is not yet exhausted, or unless it be founde...
-Chapter VIII. Hiring Of Persons. Section I. Servants
In England, a domestic servant who is turned away without notice, and without fault, is entitled to one month's wages although there be no agreement to that effect. (a) We are (a) Robinson v. Hindm...
-Hiring Of Persons. Section I. Servants. Part 2
1 A servant whose contract of hiring provides that if he intends to leave his master's employ he will give notice of such intention and work ten full working days thereafter, ana in default thereof fo...
-Hiring Of Persons. Section I. Servants. Part 3
1 A servant may be discharged for habits of intoxication. McCormick v. Demary, 10 Neb. 515. (e) Hochster v. De Latour, 2 E. L. & B. L. 678. (f) The King v. St. John, Devizes, 9 B. & C. 896. The wil...
-Hiring Of Persons. Section I. Servants. Part 4
7 Greenl. 76. The rule before adverted to as to entire performance is not binding upon persons under the age of twenty-one years, and although they engage to work a specified time, and for a specified...
-Hiring Of Persons. Section I. Servants. Part 5
(k) In this case the whole subject was fully and ably examined by Parker, J., and the court came to the following conclusions, which the American editor of Chitty on Contracts regards as manifestly j...
-Hiring Of Persons. Section I. Servants. Part 6
(m) Atkin v. Acton, 4 C. & P. 206; Ridgway v. Hungerford Market Co. 3 A. & E. 171; Turner v. Robinsons, 6 Car. & P. 15; s. c. 2 Nev. & M. 829. See also Spotswood v. Barrow, 5 Exch. 110; and Lush v. Ru...
-Hiring Of Persons. Section I. Servants. Part 7
* It has been held, that a master who uses due care in the selection and employment of his servants, is not responsible to one of them for an injury received from the carelessness of month, that C. wa...
-Hiring Of Persons. Section I. Servants. Part 8
(z) Degg v. Midland R. Co. 1 H. & N. 773. See also Vose v. Lancashire & Y. R. Co. 2 H. & N. 728. (zz) Foster v. Minnesota Central R. R. Co. 14 Minn. 360. (a) Abraham v. Reynolds, 5 H. & N. 143. ...
-Hiring Of Persons. Section I. Servants. Part 9
The master is under no legal obligation to give a testimo-nial * of character to his servant. If he does, it will be presumed that he speaks the truth, or what he believes to be true; and therefore if...
-Hiring Of Persons. Section I. Servants. Part 10
A nice distinction is taken in some cases between the presumptions which arise where service is rendered to a stranger, and where it is rendered to near relations. In general, wherever service is rend...
-Hiring Of Persons. Section I. Servants. Part 11
1 Services to one's family or friends give rise to no inference of payment, without proof of a special contract, Brown v. Yaryan, 74 Ind. 305; as where a daughter does work after becoming of age in he...
-Section II. Apprentices
The English law of apprenticeship grew out of, and with nearly all its incidents rested upon, the ancient establishment of guilds, or companies for trade or for handicraft, which were once almost univ...
-Apprentices. Continued
(u) Commonwealth v. Hemperly, 12 Penn. Law Rep. 129. (v) Commonwealth v. Conrow, 2 Penn. St. 402. (w) Rex v. De Hales Owen, 1 Stra. 99. (x) Winstone v. Linn, 1 B. & C. 460. So in Wise v. Wils...
-Chapter IX. Contracts For Service Generally
There is in all such contracts a promise, implied if not expressed, that the party employing will pay for the service rendered; (a) and, on the other hand, that the party employed will use due care an...
-Contracts For Service Generally. Part 2
(j) See ante, vol. i. p. * 117. (k) Wilson v. Burr, 25 Wend. 386; Stevens v. Adams, 23 id. 57; Newman v at law for his services; (l) but a medical practitioner, whose legal appellation is usually...
-Contracts For Service Generally. Part 3
(o) Code Civile, b. 3, tit. 8, art. 1793. (p) Hort v. Norton, 1 McCord, 22; Wilmot v. Smith, 3 C. & P. 453, where it was ruled by Lord Tenterden that if A agrees to make an article of certain mater...
-Chapter X. Marriage. Section I. Contracts To Marry
We have now to consider, first, contracts to marry; then contracts in relation to a future marriage; then contracts in restraint of marriage; and, lastly, the contract of marriage. Contracts to mar...
-Marriage. Section I. Contracts To Marry. Part 2
(g) Holt v. Ward, Stra. 937; Willard v. Stone, 7 Cowen, 22; Hunt v. Peake, 5 Cowen, 476; Pool v. Pratt, 1 D. Chip. (Vt.) 262. (gg) Russell v. Cowles, 16 Gray, 682. (h) In the case of Hutton v. M...
-Marriage. Section I. Contracts To Marry. Part 3
(i) Daniel v. Bowles, 2 C. & P. 553. (j) Cole v. Cottingham, 8 C. & P. 76. (k) Potter v. Deboos, 1 Stark. 82. A contract to marry, without specification of time, is, as we have seen, a contra...
-Marriage. Section I. Contracts To Marry. Part 4
False and injurious language used by plaintiff concerning defendant is a good defence. (x) So bad health, if such as to incapacitate from marriage, or render it unsafe or improper. (y) 2 (u) Foulke...
-Marriage. Section I. Contracts To Marry. Part 5
(z) Hall v. Wright, 96 Eng. C. L. 745. (a) Short v. Stone, 8 Q. B. 869. Lord Denman, A rape wholly without the fault of the woman, would discharge the man from his obligation. Addison on Cont. 584....
-Marriage. Section I. Contracts To Marry. Part 6
(i) This is very strongly asserted in the case of Smith v. Woodfine, 1 C. B. (x. s.) 660. (j) Southard v. Rexford, 6 Cowen, 254. This was an action of assumpsit for breach of promise of marriage. T...
-Section II. Promises In Relation To Settlements Of Advances
A promise to give to a woman, or settle upon her, a specific sum or estate on her marriage, is valid. Marriage is regarded as one of the strongest considerations in the law, either to raise a use, or ...
-Section III. Contracts In Restraint Of Marriage
These contracts are wholly void.1 It has been held, that a promise to a woman to marry no one but her was such a contract. (f) So a bond by a widow not to marry again. (g) So a wagering contract that ...
-Section IV. Contract Of Marriage
The relation of marriage is founded upon the will of God and the nature of man; and it is the foundation of all moral improvement, and all true happiness. No legal topic surpasses this in importance; ...
-Contract Of Marriage. Part 2
(p) 10 N. H. 883. (q) Bead v. Passer, 1 Esp. 213; s. c. Peake, Cas. 231; Hervey v. Hervey, 2 W. Bl. 877; Leader v. Barry, 1 Esp. 863. In Morris v. Miller, 4 Burr. 2058, Lord Mansfield held, that pr...
-Contract Of Marriage. Part 3
(s) 2 Kent, Com. 87. (t) 1 How. 210, 284. In this case and in Londonderry v. Chester, 2 N. H. 288, all the leading authorities upon this difficult question are cited. (u) In the case of Regina v...
-Contract Of Marriage. Part 4
In a case in Massachusetts, (z) l the court say: But in the absence of any provision declaring marriage not celebrated in a prescribed manner or between parties of a certain age absolutely void, it i...
-Contract Of Marriage. Part 5
(e) Riddlesden v. Wogan.Cro. E. 868; Pride v. Earle of Bath, 1 Salk. 120; Martin's Heirs v. Martin, 22 Ala. 86. (f) So at least say the court in Fen-ton v. Reed, 4 Johns. 68. (g) Sutton v. Warre...
-Section V. Divorce
Neither the courts of common law nor the equity courts of England, decree divorce. Almost all questions of marriage were, until recently, decided by the spiritual courts, having been originally under ...
-Divorce. Continued
As to the cruelty for which divorce will be granted, while it seems to be generally held that it must be a cruelty which affects life or limb or health, it is also held that this may be by any treat...
-Chapter XI. Bailment
The Law of Bailment has received in modern times a more systematic arrangement than formerly, and a more profound and accurate investigation into its principles. But it was always, though not under th...
-Section I. Depositum
Where a thing is placed with a depositary, to be kept for a time, and returned when called for, the depositary to have no * compensation, the benefit of the transaction is wholly on the side of the ba...
-Depositum. Part 2
Southcote's case, on which Lord Coke relied; the judgment in that case, as the modern civilian thinks, being founded upon the particular state of the pleadings, from which it might be inferred, either...
-Depositum. Part 3
Sir William Jones thinks the depositary held for less than gross negligence, first, where he makes a special bargain for special care, and secondly, where he spontaneously and officiously proposes to ...
-Depositum. Part 4
(u) See McMahon v. Sloan, 12 Penn. St. 229. (uu) Robinson v. Gardner, 18 Graft. 509. (v) Lethbridge v. Phillips, 2 Stark. 644. It appeared in this case that a person of the name of Bernard, bein...
-Depositum. Part 5
(xx) Newhall v. Paige, 10 Gray, 366. (xy) Persch v. Quiggle, 67 Perm. St. 247. (y) In Bridges v. Hawkesworth, 7 E. L. & E. 424, the plaintiff had picked up from the floor of the shop of the defe...
-Section II. Mandatum
When the commission is gratuitous, there also the transaction is for the exclusive benefit of the bailor, and the bailee is held only for gross negligence. In deposit the safe-keeping is the principal...
-Mandatum. Part 2
1 Jenkins v. Bacon, 111 Mass. 373, decided that a gratuitous bailee who bought a bond at the plaintiffs request, which he was to keep for him and collect the coupons for the benefit of the plaintiffs ...
-Mandatum. Part 3
* 103 common law looks upon an injury which * accrues from mere nonfeasance as too remote to lay the foundation for an action of tort; for this purpose it requires that the injury should be the direct...
-Mandatum. Part 4
1 Cook v. State Bank, 52 N. Y. 96; but an assistant-cashier cannot so certify in the absence of usage. Pope v. Albion Bank, 57 N. T. 126. So a cashier, by signing a transfer in blank upon the back of ...
-Mandatum. Part 5
* terms of the contract at their pleasure by a special agree ment. So a mandatary may impose upon himself an additional degree *of liability by his interfering with the property committed to his charg...
-Mandatum. Part 6
(o) Fellows v. Gordon, 8 B. Mon. 415 ; Ferguson v. Porter, 8 Fla. 27. See note (l), supra. (p) Wilson v. Brett, 11 M. & W. 113. This was an action on the case for negligence in riding the plaintiff...
-Section III. Commodatum
When a thing is borrowed, to be used by the borrower, without any reward or compensation to be received by the owner from him, this transaction resembles the two former, in so far as it is gratuitous....
-Section IV. Pignus
We now enter upon a topic of more interest, inasmuch as the questions which belong to it are of more frequent occurrence. (5) Blakemore v. E. & B. Railway Co., 92 Eng. C. L. 1036. * A pledge is ...
-Pignus. Part 2
(w) Jennison v. Parker, 7 Mich. 365. See Roberts v. Thompson, 14 Ohio put to expense or extraordinary trouble to preserve the value of the pledge, he may charge the owner for it, unless there be a bar...
-Pignus. Part 3
(b) See the cases cited in the preceding note. (bb) Campbell v. Parker, 9 Bosw. 322 As to the damages, it seems that the debtor may recover, if the stocks had risen in value, that enhanced value...
-Pignus. Part 4
Where stock is pledged to a stockbroker, and a note given with it, stating that the stock was deposited as collateral security, with authority to sell the same at the board of brokers, if the note was...
-Pignus. Part 5
1 Authority to sell at public or private sale certain notes pledged as collateral to secure the pledgor's debt, will not authorise the pledgee to surrender them after due, having made no attempt to ...
-Pignus. Part 6
(r) See Averill v. Irish, 1 Gray, 254; Stief v. Hart, 1 Comst. 20. (s) Jarris v. Rogers, 16 Mass. 880; Bushforth v. Hadfield, 7 East, 224; Walker v. Birch, 6 T. R. 268; Robinson v. Frost, 14 Barb. ...
-Section V. Locatio
Locatio in general, means a hiring; and as are there many ways of hiring, the general topic includes these particular forms, and usually the classification and the terms of the civil law are used. ...
-Locatio. Part 2
1 Where the hirer of a horse placed it for medical treatment, with the owner's knowledge, with a third person, an implied promise is raised on the owner's part to pay that person for his services, of ...
-Locatio. Part 3
When the thing bailed is lost or injured, the hirer is bound to account for such loss or injury. But, when this is done, the proof of negligence or want of due care is thrown upon the bailor, and the ...
-Locatio. Part 4
(c) Sutton v. Temple, 12 M. & W. 52,60. (d) Hickok v. Buck, 22 Vt. 149. in this case the defendant leased to the plaintiff a farm for one year, and, by the conthe thing hired, as a horse hired for ...
-Locatio. Part 5
(k) Harvey v, Epes, 12 Gratt. 163. (l) See Esmay v. Fanning, 9 Barb. 176. (m) See Hickok v. Buck, 22 Vt. 149, cited ante, p. * 127, n. (d). (n) Roberts v. Wyatt, 2 Taunt. 268. (o) Stanley ...
-Locatio. Part 6
The workman has a special property in the thing delivered to him, and may maintain an action against one who wrongfully takes it from his possession. If it perishes in his hands, without his fault, th...
-Locatio. Part 7
(v) This subject has been very much discussed within the last few years, especially in the courts of New York. The earliest case that we have seen is that of Seymour v. Brown, 19 Johns. 44. There the ...
-Locatio. Part 8
In the two preceding notes, we have given the principal American cases which bear in fact, though not always in name, upon these questions. It will be seen, that it must be difficult to draw distinct ...
-Locatio. Part 9
If the workman, by a deviation from his instructions, makes his work of no use, he can claim no compensation. If the article be still of some use, and be received by the employer, the workman may clai...
-Locatio. Part 10
(k) Roberts v. Turner, 12 Johns. 282. This is a very important case on the liability of forwarding merchants. It was an action on the case against the defendant as a common carrier. The defendant resi...
-Locatio. Part 11
(l) Garside v. Trent and Mersey Navigation Co. 4 T. R. 681. In this case the defendants, being common carriers between Stourport and Manchester, received goods from the plaintiff at Stourport, to be c...
-Locatio. Part 12
(t) In Ogle v. Atkinson, 6 Taunt. 769, it was decided, that a warehouseman, receiving goods from a consignee, who has had actual possession of them, to be kept for his use, may nevertheless refuse to ...
-Locatio. Part 13
(x) See ante, p. * 125, note (b). (y) Johnson v. The Schooner McDon-ough, Gilpin, 101; Lewis, ex parte, 2 Gal-lison, 488. (z) Rex v. Humphrey, 1 McClel. & Y. 173. (a) 1 Ld. Raym. 646 ; s. c. ...
-Locatio. Part 14
(ll) Dawson v. Chamney, 5 Q. B. 164, and Merritt v. Claghorn, 23 Vt 177. Dawson v. Chamney was an action on the case to recover damages for an injury to the plaintiff's horse. It appeared that the def...
-Locatio. Part 15
But it is a good defence that the loss was caused by the servant of the owner, (n) or by one who came with him as his companion, (o) or by the negligence of the owner; (p)1 or that (ln) Adams v. Cl...
-Locatio. Part 16
(r) Thus, where a traveller went into an inn, and desired to have his luggage taken into the commercial room, to which he resorted, from whence it was stolen, the court held, that the innkeeper was re...
-Locatio. Part 17
It is sometimes difficult to know who is the guest of an innkeeper. (h) 1 In this country it is very common for perchattels and money of their guests, is founded on the great principle of public utili...
-Locatio. Part 18
(ii) Shoecraft v. Bailey, 25 Ia. 663. See also Pollock v. Landis, 86 Ia. 651. (j) This question was discussed in the Supreme Judicial Court of Massachusetts, in the case of the Berkshire Woollen Co...
-Locatio. Part 19
(mm) It was also held in a recent case in New York. Ingallsbee v. Wood, 88 N. Y. 677. (n) Yorke v. Grenaugh, 2 Ld. Raym. 866; s. c. nom. York v. Grindstone, 1 Salk.888. (o) In the case of Gelley...
-Locatio. Part 20
(s) Thus in Albin v. Presby, 8 N. H. 408, where a traveller, after arriving at an inn, placed his loaded wagon under an open shed, near the highway, and made no request to the innkeeper to take the cu...
-Locatio. Part 21
(a) Miles v. Cattle, 6 Bing. 748. (b) Brind v. Dale, 8 C. & P. 207. (c) See Story on Bailm. 383-330. (e) Doorman v. Jenkins, 2 A. & E. 250b the common carrier and the private car...
-Locatio. Part 22
1 Nugent v. Smith, 1 C. P. D. 423, defines the term act of God, as regards the degree of care to be applied by the carrier in order to entitle himself to its protection, as such an irresistible act ...
-Locatio. Part 23
(p) Forward v. Pittard, 1 T. R. 27; Thorogood v. Marsh, Gow, 106; Hale v. N. J. Steam Navigation Co. 16 Conn. 680, 545; Parker v. Flagg, 26 Me. 181; Parsons v. Monteath, 18 Barb. 353; Chevaillier v. S...
-Locatio. Part 24
(a) Story on Bailm. 25, 526; An-gell, Com. Car. 200. We have ventured to include pirates within the exception of public enemies, on the authority of these eminent text-writers. T...
-Section VI. Who Is A Common Carrier
To determine who is a common carrier, we adopt the definition of Mr. Chief Justice Parker of Massachusetts. He is one who undertakes, for hire, to transport the goods of such as choose to employ him,...
-Who Is A Common Carrier. Part 2
Court held the instruction to be correct Gibson, C. J., said: The best definition of a common carrier, in its application to the business of this country, is that which Mr. Jeremy (Law of Carriers, 4...
-Who Is A Common Carrier. Part 3
1 An express company that receives and agrees to transport goods from a certain place to another for a compensation, in the ordinary means or conveyance, although not the owner, and having no interest...
-Who Is A Common Carrier. Part 4
(f) If a coachman commonly carry goods, and take money for so doing, he will be in the same case with a common carrier, and is a carrier for that purpose, whether the goods are a passenger's or a str...
-Who Is A Common Carrier. Part 5
(j) Thus, in Elliott v. Rossell, 10 Johns. 1, it was held, that masters and owners of vessels, who undertake to carry goods for hire, are liable as common carriers, whether the transportation be from ...
-Who Is A Common Carrier. Part 6
(s) Steam Navigation Co. v. Dan-dridge, 8 Gill & J. 248, 320. (ss) Brown v. Clegg, 63 Penn. St. 51. (t) Morse v. Slue, 1 Vent. 190, 238. (u) Boucher v. Lawson, Cas. Temp. Hardw. 84, 194; Boso...
-Section VII. Obligations Of A Common Carrier
A private carrier may or may not carry for another, as he prefers. But a common carrier is bound to receive and carry all the goods offered for transportation, subject to all the responsibilities inci...
-Section VII. When The Responsibility Begins
As soon as the goods are delivered and received, they are at the risk of the carrier. This reception of them may be specific *or general, and according to the usage of his business; and it may be actu...
-When The Responsibility Begins. Part 2
1 If a consignor instructs an express company not to permit the consignee to examine the goods sent, before delivery and payment of charges, the company's agent is authorized to refuse such an examina...
-When The Responsibility Begins. Part 3
The principle which governs these cases may be stated thus. If the transportation be the chief thing, and the deposit of the goods on a wharf or in a building be for a short time only, and merely inci...
-When The Responsibility Begins. Part 4
(y) Burrell v. North, 2 Car. & K. 680; Davy v. Mason, 1 Car. & M. 45; D'Anjou v. Deagle, 3 Har. & J. 206. (z) But the agent must have an authority for this purpose, or be held out as having it Ther...
-Section IX. When The Responsibility Ends
As the liability of the carrier begins with the delivery of the goods to him, so it continues until the delivery of the goods by him. For he is bound not only to carry them to their destined place, bu...
-When The Responsibility Ends. Part 2
(hh) Claflin v. Boston, etc R. R. Co. 7 Allen, 341. See Winslow v. Vermont, etc. R. R. Co. 42 Vt. 700. In McKeon v. Mclvor, L. R. 6 Ex. 36, it was held that the carrier was not liable for misdelivery ...
-When The Responsibility Ends. Part 3
(o) Hand v. Baynes,4Whart.204,214; Paradine v. Jane, Aleyn, 27; Brecknock Co. v. Pritchard, 6T.R. 750. But see Dows v. Cobb, 12 Barb. 310, 321. (p) See cases cited ante, p. * 183, note (f). In Lewi...
-When The Responsibility Ends. Part 4
(t) Thomas v. Boston & Providence Railroad Co. 10 Met. 472. This was an action against the defendants as common carriers, to recover for the loss of a roll of leather. It appeared in evidence that fou...
-When The Responsibility Ends. Part 5
It may be remarked, that, however railroad companies or other inland carriers may adopt the form and phraseology of bills of lading and other maritime contracts, the essential difference in the nature...
-When The Responsibility Ends. Part 6
(x) Chickering v. Fowler, 4 Pick. 371. (y) This was very authoritatively declared by Mr. Justice Porter, in Kohn v. Packard, 3 La. 224. The contract of affreightment, said he, does not impose o...
-When The Responsibility Ends. Part 7
1 Redmond v. Liverpool, etc. Steamship Co. 46 N. Y. 578, was to the effect that a mere deposit of goods by a common carrier by water on his own wharf, without acceptance by the consignee, not separate...
-When The Responsibility Ends. Part 8
It must also be remembered, that the consignee must have a reasonable time to receive and remove his goods; and not until this time has elapsed, will they be considered as left in the hands of the car...
-When The Responsibility Ends. Part 9
1 See Michigan, etc. R. Co. v. Oehm, 56 Ill. 293; Chicago, etc. R. Co. v. Shea, 66 Ill. 471. If the owner of goods gives new directions as to their delivery after they are taken by the carrier, of ...
-When The Responsibility Ends. Part 10
It has been held that the carrier of goods cannot defend against an action for injury to them, on the ground that the sender, a corporation, could not acquire legal title to them. (rr) Nor is the c...
-Section X. Where A Third Party Claims The Goods
One question in regard to the carrier's obligation to deliver goods to the shipper or consignor, has been much agitated, and perhaps is not quite settled. It arises in the case of another party claimi...
-Section XI. Compensation
This is sometimes fixed by law; as for incorporated companies, ferries, etc. Where it is not so fixed, the carrier may determine it himself. But having adopted and made known a usual rate, he better s...
-Section XII. Of The Lien And Agency Of The Carrier
Whether a private carrier has a lien on the goods for his freight, is not, as we have already said, determined by the authorities. Generally, perhaps, it has been considered that one of the distinctio...
-Of The Lien And Agency Of The Carrier. Part 2
(f) Dufolt v. Gorman, 1 Minn. 801. (g) Dorrs v. Morewood, 10 Barb. 188; Henna v. Phelps, 7 Ind. 21. (h) Lambard v. Pike, 88 Me. 141; Bangor v. Goding, 85 Me. 73. (i) The doctrine of lien ori...
-Of The Lien And Agency Of The Carrier. Part 3
The carrier may also be a factor to sell for the owner; and this by express instructions, or by usage of trade. (n) When this is the case, after the carrier has transported the goods, and is engaged i...
-Section XIII. Of The Responsibility Of The Carrier Beyond His Own Route
The question, when the carrier is liable beyond his own route, has been recently much considered, and is not yet quite settled. If carriers for different routes, which connect together, associate for ...
-Of The Responsibility Of The Carrier Beyond His Own Route. Part 2
* 214 for the whole route, * would be evidence going far to prove such undertaking. (v) 1 Hence the purchase of what is and carried on business on their line between Lancaster and Preston, as common c...
-Of The Responsibility Of The Carrier Beyond His Own Route. Part 3
(v) See the preceding note; and especially Farmers & Mechanics Bank v. Champlain Transportation Company, 23 Vt. 186, 909. See also Williams v. Vanderbilt, 28 N. Y. 217, and Lock Company v. W. & N. ...
-Of The Responsibility Of The Carrier Beyond His Own Route. Part 4
A railroad is certainly liable for losses to persons or goods in the cars of other railroads which it receives and transports on its own. (y) And it has been held in Massachusetts, that a railroad cor...
-Section XIV. Common Carriers Of Passengers
The carrier of passengers is not liable for them in the same way in which the carrier of goods is liable. The rule, the exception, and the limitation and reason of the exception are now all perfectly ...
-Common Carriers Of Passengers. Part 2
St Louis, etc. R. R. Co. 22 Ind 26. As to what will constitute that degree of negligence for which a carrier of passengers will be held liable, it must of course depend upon the circumstances of each ...
-Common Carriers Of Passengers. Part 3
manded and refused. (ee) * It has been held in New York, that a contract between a railroad company and a gratuitous passenger, exempting the company from liability under any circumstances of negli...
-Common Carriers Of Passengers. Part 4
carry * them the whole route; (m) to demand no more than the usual and established compensation; to treat all his passengers alike;1 * to behave to all with civility and propriety; (n) to provide suit...
-Common Carriers Of Passengers. Part 5
2 See also Meier v. Penn. R. Co. 64 Penn. St. 225. (oo) Hanley v. Harlem R. R. Co. 1 Edm. Sel. Cas. 359. degree of speed; (p) and to have servants and agents competent for their several employme...
-Common Carriers Of Passengers. Part 6
The paramount duty of a railroad company is to look to the safety of the persons and property it transports. And it has been for the damage sustained by the wife whilst travelling in their cars. As pa...
-Common Carriers Of Passengers. Part 7
The carrier, whether of goods or passengers, is liable for an injury to strangers, if this be caused by the negligence of the driver or conductor; (v) as if he runs over one, or otherwise injures him,...
-Common Carriers Of Passengers. Part 8
(cc) Eaton v. Boston, etc. R. R. Co. 11 Allen, 600. (d) Johnson v. Hudson River R. R. Co. 20 N. Y. (6 Smith) 65; Wilds v. Same, 24 N. Y. (10 Smith) 430. (e) Davies v. Mann, 10 M. & W. 646; Cook ...
-Common Carriers Of Passengers. Part 9
(ii) Southern R. R. Co. v. Kendrick, 40 Miss. 374; Jeffersonville R. R. Co. v. Hendrick, 26 Ind. 228. (ij) Inchoff v. Chicago R. R. Co. 20 Wis. 344. Several cases have come before the courts, ra...
-Section XV. Of Special Agreements And Notices
We have seen how severe a responsibility is cast upon the common carrier by the law; and it is a very interesting question, how far he may remove it or lessen it, with or without the concurrence of th...
-Of Special Agreements And Notices. Part 2
1 In Ayres v. Western R. Co. 14 Blatchford, 9, a stipulation that the company would not be liable as carriers for goods after their arrival at their place of destination and unloading at the company'...
-Of Special Agreements And Notices. Part 3
(l) Cole v. Goodwin, 19 Wend. 261. (m) In Simons v. Great Western B. Co. 2 C. B. (n. s.) 620, the plaintiff was told by the clerk, who offered a paper to be signed, that the signature was a mere f...
-Of Special Agreements And Notices. Part 4
A carrier binds himself also by his contracts; and it is held, that a railroad company is bound by its advertised time-tables, * perhaps as by its contract, and certainly as by its representation, to ...
-Of Special Agreements And Notices. Part 5
(rr) Hooper v. Wells, 27 Cal. 11; Earle v. Cadmus, 2 Daly, 237; Hopkins v. Westcott, 6 Blatch. 64. (rs) Boorman v. Amer. Express Co. 21 Wis. 162; Scrohn v. Detroit R. R. Co. 21 Wis. 554. See also S...
-Of Special Agreements And Notices. Part 6
It is most obvious that such could not have been the intention; and that the true meaning and intention was, that they would not call upon them for any damage whatsoever, 'that may happen to any horse...
-Of Special Agreements And Notices. Part 7
In one, the carrier exempts himself from liability for all injuries which can in no way be attributed to his own negligence or wrongdoing. In another, this exemption covers all liabilities whatever...
-Of Special Agreements And Notices. Part 8
(sz) Hawkins v. Great Western R. R. Co. 17 Mich. 67; Indianapolis, etc. R. R. Co. v. Allen. 31 Ind. 394; Michigan, etc. v. Heaton, id. 897. (sa) Cleveland, etc. R. R. Co. v. Cur-ran, 19 Ohio, 21. ...
-Of Special Agreements And Notices. Part 9
Horse railroads have been recently introduced in our larger cities, and are now common. In the cases cited below, interesting questions are considered in reference to the authority of municipal govern...
-Section XVI. Of Fraud
All fraud, or wilful misrepresentation, or intentional concealment, on the part of the sender of goods, or of the passenger, extinguishes the liability of the common carrier, so far as it is affected ...
-Section XVII. Of The Evidence Of Loss
In regard to the proof of the contents of a passenger's trunk, lost by, or while in charge of, a common carrier, the prevailing American authority holds that the liability of the carrier for same amou...
-Chapter XII. On The Law Of Telegraphic Communications. Section I. - Of Telegraph In General
Although but a few years have elapsed since the invention of the electric telegraph, it is already in very general use. It joins provinces and nations separated by streams and seas, and now covers a l...
-Section II. The Legal Character Of A Company Working A Telegraph
The main question here is, Is such a company a common carrier? There are decisions in which the affirmative is quite distinctly asserted. And there are others in which it is asserted with more or less...
-Section III. The Obligations And Rights Of Telegraph Companies
They are bound to have suitable instruments, and competent servants, and to see that the service rendered to applicants is rendered with the care and skill which its peculiar nature requires. (g) 1 Th...
-The Obligations And Rights Of Telegraph Companies. Part 2
The delivery of the message must be prompt, and to the right person. They are certainly bound to send it beyond their own lines, if this be obviously implied and required by the address of the message...
-The Obligations And Rights Of Telegraph Companies. Part 3
257 j by said company for sending the same, has been held not to be reasonable, and not to exonerate the company from liability beyond such a sum paid for transmission, True v. International ...
-The Obligations And Rights Of Telegraph Companies. Part 4
(q) The reasonableness of this regulation has been repeatedly sustained. In the early case of MacAndrew v. Electric Tel. Co. 17 C. B. 3, the plaintiff had sent a dispatch by the defendants' line order...
-Section IV. Of The Breaches Of This Contract
We must look to the obligations of the parties to learn what constitutes a breach. So far as the sender is concerned it would seem to be practically confined to his non-payment of the price of his mes...
-Section V. Of The Contract Between The Company And The Persons To Whom Messages Are Sent
The first question might seem to be, Is there any contract whatever between the company and the receiver; are they under any obligation whatever to him; or what basis can there be for any such contrac...
-Section VI. Of Contracts Between Sender And Receiver By Telegraph
These are now common. It is certainly desirable that the law in respect to them should be definitely determined; but it is not so as yet. If one party makes an offer and the party to whom it is mad...
-Of Contracts Between Sender And Receiver By Telegraph. Continued
1 A contract by telegraph, like one by mail, is completed when the acceptance is deposited for transmission in the telegraph office. Minnesota Oil Co. v. Collier Lead Co 4 Dillon, 431. 267 u...
-Section VII. Of The Measure Of Damages
In some of our states, the owners of stock or shares in telegraph companies are made personally liable for the debts of the company. More frequently they are left to the common law of corporations, wh...
-Chapter XIII. Of Patents
The law of Patents is but a little more than two centuries old, in England; and on the continent of Europe it began still later. In this country a statute authorizing and regulating patents was enacte...
-Section III. Of The Foundation Of A Patent-Right
Whatever may have been the theory in former years, it must now be admitted, that a patent-right now rests altogether on the statute, and not at all upon any inherent or natural right of an inventor to...
-Section III. Who May Obtain A Patent
The Statute of 1870 enacts, that any person who has invented or discovered any new and useful art, machine, manufacture or (b) Morton v. N. Y. Eye and Ear Infirmary, 2 Fish. 890. (c) Grant v. R...
-Section IV. What May Be Subject Of A Patent
The language of the statute in the passage above quoted, in which it describes the things for which a patent may be granted, is much the same as in the older statutes. And every word of it has passed ...
-What May Be Subject Of A Patent. Part 2
257 ff That may enlarge the use of a thing, but does not make it a new thing. If a part of what is claimed is not new, and that part is severable from the residue which is new, the statute ...
-What May Be Subject Of A Patent. Part 3
(l) Manton v. Parker, Dav. Pat Cas. 827; Roberts v. Ward, 4 McLean, 565; Curtis on Patents, 248; O'Reilly v. Morse, 16 How. 119. The superior utility of a machine, though not of itself ground f...
-What May Be Subject Of A Patent. Part 4
* nothing but that very machine. But the process ii on which this decision was rendered was as follows: I do not propose to limit myself to the specific machinery or parts of machinery described in...
-Section VI. Of Infringement
The patent gives to the patentee the exclusive use of the thing patented, for seventeen years. If any other person, within that period, makes an adverse use of it, (and any use of it without the paten...
-Of Infringement. Continued
(s) Act 1870, 26. See Sickles v. Gloucester Man. Co. 1 Fish. 222; Johnson p. Root, id. 351; Rich v. Lippincott, 2 Fish. 1; Dixon v. Moyer, 4 Wash. 73. The specification, says Story, J., has ...
-Section VII. Of The Rights Of A Purchaser Of An Interest In A Patent
The owner of a patent, whether he be the original inventor and patentee, or an assignee, may himself assign and transfer his right, in whole or in part. (y) Conditions or limitations, which (x) A m...
-Section VIII. Of The Rights Of A Purchaser Of A Patented Article
Such a purchaser has the right to use the article as he pleases, or neglect to use it. But he cannot copy it and make another; not even if he loses the one he bought, by accident, as by fire. (b) He m...
-Section IX. Of Remedies At Law
The statute provides that damages for an infringement may be recovered in an action on the case in any circuit court of the United States, or district court exercising the jurisdiction of a circuit co...
-Section X. Of Remedies In Equity
The statute gives the court power upon bill in equity filed by any party aggrieved, to grant injunctions according to the course and principles of courts of equity. (k) This remedy of injunction is ...
-Section XI. Of Damages
The statute provides that whenever in any such action (action on the case) a verdict shall be rendered for the plaintiff, the court may enter judgment thereon for any sum above the amount found by th...
-Chapter XIV. Of The Law Of Copyright
The Statute of July 8, 1870, already referred to in the preceding chapter on the Law of Patents, in the sections 85 to 110, inclusive, regulates the law of copyrights. The subjects of copyright may...
-Of The Law Of Copyright. Part 2
But this question is now settled, and it is * certain that ae no author has any right in or to his work after it is published, which courts can respect, except that which is given him by statute.1 It ...
-Of The Law Of Copyright. Part 3
(d) Act 1870, 93, 94. (e) Abernethy v. Hutchinson, 1 Hall ft Tw. 28. In this case the plaintiffs lectures on surgery had been taken down in short-hand, and published in a medical journ...
-Of The Law Of Copyright. Part 4
(k) A man has a right to the copyright of a map of a State or country which he has surveyed or caused to be compiled from existing materials, at his own expense or skill or labor or money. Another ma...
-Of The Law Of Copyright. Part 5
So it has been held, that where a person had adapted words of his own to an old air and added a prelude and accompaniment he was entitled to a copyright for the entire combination. Lover v. Davidson, ...
-Section II. Of Assignment
A copyright is a vested interest which a holder may assign, in whole or in part, for such consideration and upon such terms as he pleases. But any assignment or transfer should be recorded (q) Stoc...
-Section III. Of Infringement
The sections of the statute which prohibit and punish any violation of the rights conferred by the statute, will be found in our notes. (z) The section following these recognizes the rights of any aut...
-Of Infringement. Part 2
Seldom is a whole work reprinted without change. But a part of it may be reprinted word for word; or the whole, or an important part may be reprinted under a colorable disguise. Either will be, genera...
-Of Infringement. Part 3
(f) Millet v. Snowden, 1 West. L. J. 240; Gambart v. Sumner, 5 H. & N. 5; West v. Francis, 5 B. & Ald. 737. (g) In Stowe v. Thomas, 2 Am. Law Reg. 210, it was first expressly decided that a tran...
-Of Infringement. Part 4
(j) Curtis onCopyright,p.271. There can be no doubt that the definition of an abridgment given in the anonymous case * of reasoning does not go so far. The test would stall au be, as in regard to ...
-Of Infringement. Part 5
1 Russ. & M. 78; Mawman v. Tegg, tion will be given him upon such terms as the rights and interests of all parties seem to require. (u) 2 Russ. 285; Lewis v. Chapman, 3 Beav. 133; Buxton v. James, ...
-Chapter XV. On Trade-Marks. Section I. - What A Trademark Is
The Statute of July 8, 1870, to which we have referred as the statute now governing the law of patents and of copyrights, also provides for and protects trade-marks. (a) 1 From (a) The Act of July ...
-On Trade-Marks. Section I. - What A Trademark Is. Part 2
(b) Southern v. How, Popham, 144. Doderidge said that, 22 Eliz. an action on the case was brought in the Common Pleas by a clothier, that whereas he had gained great reputation for his making of his ...
-On Trade-Marks. Section I. - What A Trademark Is. Part 3
(ee) In Burnett v. Phalon, 9 Bosw. 192, the court say: Every man has a right to the reward of his skill, his energy, and his honest enterprise, and when he has appropriated as his trade-mark letters ...
-Section II. Of The Right Which A Trade-Mark Secures
The law of trade-marks was originally founded upon the fraud of him who used them falsely, and upon that fraud as bf * practised on the buyer. It was a second and a distinct step which extended this l...
-Section III. Who May Have A Trade-Mark
We do not see that the statute determines this. It only provides that our own citizens and certain aliens, if they are entitled to the exclusive use of any lawful trade-mark, or who intend to adopt a...
-Who May Have A Trade-Mark. Continued
bi here, or selling them here as those very gloves. (j) But he would have no right to assume the trade-mark which indicated that he was, by an arrangement with the manufacturer, his exclusive represen...
-Section IV. How This Right May Be Acquired. A. How originally acquired
Any one adopting and using a trade-mark may so make it his, and advertise it as his to the public. But neither this adoption and use, for any length of time, nor any advertisement or publicity would n...
-How This Right May Be Acquired. A. How originally acquired. Continued
1 A person cannot have a right in his own name as a trade-mark, as against a person of the same name, unless the latter's form of stamp or label is so similar as to represent that his goods are of the...
-B. Of the Acquisition of the Right by Inheritance
As the statute provides that a trade-mark, when duly recorded, shall remain in force for thirty years, and then be extended on application for thirty years more, it must be regarded as contemplati...
-B. Of the Acquisition of the Right by Inheritance. Continued
But has the buyer bought this right as against the world? To some extent he has. For the mark indicated that goods of a certain make had a certain peculiar value; and the mark was of no value exceptin...
-Section V. Of The Infringement Of A Right To A Trade-Mark
The 79th section provides, that any person or corporation who shall reproduce, counterfeit, copy, or imitate a recorded trademark shall be liable to an action for damages, and the party aggrieved sh...
-Of The Infringement Of A Right To A Trade-Mark. Part 2
Jour. Ch. (n. s.) 255; Stephens v. Peel, 16 Law Times Rep. (n. s.) 145; Purser v. Brain, 17 Law Jour. Ch. 141. In the Brooklyn White Lead Co. v. Masury, 25 Barb. 416, the plaintiffs distinguished the ...
-Of The Infringement Of A Right To A Trade-Mark. Part 3
We apprehend, however, that a distinction would be drawn, which, so far as the authorities go, would seem to be warranted representations are made, even though a loss result to one of the parties from...
-Section VI. Of The Remedy For Violation Of The Right To Use A Trade-Mark
We are not aware of any modern case in which a customer deceived by a simulated trade-mark has brought an action for the fraud. (h) But actions by the party possessing or claiming to possess the exclu...
-Of The Remedy For Violation Of The Right To Use A Trade-Mark. Continued
It has been held that where an injunction against the use of a trade-mark had been issued, it was a breach to use the same name, with the addition of improved, although the defendant said on the lab...
-Chapter XVI. Of The Law Of Shipping. Section I. Of The Building And Ownership Of A Ship. A. - Of a Building Contract
This contract may be whatever the parties to it choose to make it Thus, one who desires to own a ship, may propose to supply the builder with all requisite materials, the builder to do for him all the...
-B. - Of the Liens of Material Men
Formerly, builders of ships, as well as those who repaired, equipped, or supplied them, were called material men; (f) and this somewhat peculiar phrase has been in use as a term of the law-merchant fo...
-B. - Of the Liens of Material Men. Continued
In Maine, the lien attaches to the vessel while building, and continues for four days after she is launched; and if the materials are sold on a credit which reaches beyond the four days, there is no l...
-C. - Of Owners
Any person may become an owner of a ship in the same way as of any other chattel, unless some peculiar means or process is required by law. It is undoubtedly true, that ships are always (j) Russel ...
-D. - Of Part-owners. 1. Who are Part-owners
A part-owner of a ship is one who owns a definite part or proportion of the whole ship; and of this part his ownership is exclusive. It follows, therefore, that part-owners of a ship do not thereby be...
-3. OF A Ship's Husband
This somewhat peculiar name is ancient and general, but our statutes of registration substitute for it the phrase managing owner. l A ship's husband is usually, indeed almost always, a part-owner; b...
-4. Of the Liens of Part-owners
There might be some reason for holding that the part-owners have a general lien on the ship for their just charges or balances of accounts against each other, in relation to the ship, but this is cert...
-5. Remedies against Part-owners
It is common for ship chandlers and others furnishing supplies or articles of furniture or apparel by the order of a ship's husband * or of any part-owner, to charge the same in their books against th...
-Section II. Of The Transfer Of A Ship. A. - Of a Sale by the Owner
We have already considered, in a previous section, a question which might arise under almost any transfer of a ship. It is, Can such transfer be made without a written instrument? And we have seen tha...
-2. Of the Requirement and Effect of Possession by the Purchaser
A ship is a personal chattel although it is one of a peculiar character. The universal rule in regard to the sale of chattels is, that the want or delay of possession by the purchaser is a badge of fr...
-C. - Sale of a Ship under a Decree of Admiralty
A ship is sometimes sold either abroad or at home under a decree of Admiralty. If this rest upon a condemnation of a ship, whether as prize, or for forfeiture, or in execution of a decree to pay salva...
-D. - Of Transfer by Mortgage. 279. 1. How A Mortgage Of A Ship Should Be Recorded
We know not why a ship may not be mortgaged in the same way and to the same effect as a personal chattel. Such mortgages of ships are not unfrequently made. They should now be registered under the req...
-2. Of the Liability of Mortgagees
An owner of a ship, in possession of her, is liable for all supplies furnished, and all repairs made, and all contracts made, by his authority, for the benefit of the vessel. But the question has freq...
-E. - Of Transfer by Bottomry
Hypothecation by bottomry is at once one of the most ancient and one of the most common transactions of shipping. It is almost, if not quite always, effected by an instrument known as a bottomry bond....
-E. - Of Transfer by Bottomry. Continued
(v) Sharpley v. Hurrel, Cro. Jac. 208; The Cognac, 2 Hagg. Adm. 387; The Atlas, 2 Hagg. Adm. 57; White v. Ship Daedalus, 1 Stuart, L. Can. 130. (w) The Atlas, 2 Hagg. Adm. 48; The Emancipation, 1 W...
-F. - Of Respondentia
The master may hypothecate the whole of the cargo, or a part of it, to raise funds, in a case of sufficient necessity. (q) He may do this by a bill of sale properly conditioned; but more usually and m...
-Section III. Of Contracts In Relation To The Use Of A Ship. A. - Of the Use of the Ship by the Owner. 1. When He Carries His Own Goods
He may carry his own merchandise, or that of others, or he may carry both. If he carry goods for others, he carries them on freight, and the usual if not constant meaning of the word * freight in law,...
-B. - Of the Use of a Ship by Freighters. 1. Of The Reciprocal Lines of The Ship and the Cargo
The contract by which an owner carries the goods of others, is called a contract of affreightment. The law of freight applies where the owners of the ship are one party, and the owners of the cargo, o...
-2. Of the Bill of Lading
This is one of the most ancient documents now in use, and is very similar in its form and provisions among all commercial nations. It is a written receipt for the goods, signed by the master as the ag...
-Of the Bill of Lading. Part 2
The effect of the bill, when delivered, depends somewhat upon the question, whether the consignor be or be not the consignee. When he is not, and the consignor sends the bill to the consignee, the goo...
-Of the Bill of Lading. Part 3
The contract for freight is in law an entire contract; that is, it is a contract for the delivery of all the goods at the end of the whole voyage; and therefore no freight is payable unless the whole ...
-Of the Bill of Lading. Part 4
(g) Morgan v. Ins. Co. of N. A. 4 Dall. 455; Bradstreet v. Heron, Abbott, Adm. 209. Where the seizure is by customhouse officers, see Gosling v. Higgins, 1 Camp. 451; Spence v. Chodwick, 10 Q. B. 517;...
-4. Of Transshipping the Goods and Forwarding them in other Vessels
We have seen that although the ship has no lien on the cargo for payment of freight, until that be earned, the ship has a lien on the cargo once shipped on board, grounded on the right of the ship to ...
-C. - Of the use of the Vessel by Hirers or Charterers. 1. How Charter-Parties are made
An owner of a ship who lets it to others for them to use, does so by an instrument called a charter-party. This instrument is of constant use and of great importance. Printed forms are in general use;...
-3. Of the Provisions of a Charter-Party
A charter may be for one or more voyages, or for a time certain; (c) or without limitation of time, and then there is by law a limitation of time for a reasonable term; and such a charter-party would ...
-4. Of Lay Days and Demurrage
A charterer is usually allowed so many days for loading, and so many days for unloading the ship. These days are called Lay Days. They are a part of the voyage, and belong to the charterer. The phrase...
-Section IV. Of Incidents Of The Voyage. A. - Of Loss by Perils of the Sea
Questions arising from losses or injuries by perils of the sea, come up between the owner and the insurer, and these questions will be treated of in the chapter on Insurance. They are also presented f...
-B. - Of Collision
This is a maritime peril, an injury from which is quite common in harbors, and it sometimes occurs at sea. It gives rise to a question entirely distinct from those presented by other losses or perils....
-B. - Of Collision. Part 2
(r) The Scioto, Daveis, 869. (s) Sch. Catherine v. Dickinson, 17 How. 177. (t) Valin favors the rule. Liv. 3, tit. 7, des Avaries. Cleirac calls it a judicium rusticum. See also De Vaux v. Salva...
-B. - Of Collision. Part 3
If two steamboats approach, they must go to the right of each other. (n) As they can always move in any direction, they are Emily, Olcott, Adm. 132; The Rebecca, 1 Blatchf. & H. Adm. 847. (i) Th...
-C. - Of Salvage. 1. What Salvage Is
This word has two distinct meanings in maritime law. It sometimes means that which is saved from wrecked property, whether ship or cargo; and questions respecting it in this sense arise under policies...
-2. By what Services Salvage is Earned
The ground upon which the liberal compensation usually granted in salvage cases rests, is three-fold. First: A marine peril. Second: Voluntary service. Third: Success. It is necessary that the prop...
-3. Of Derelict
The salvage service most liberally rewarded is that of saving derelict property. This word simply means abandoned. As a maritime term, used in salvage law, it means a vessel or cargo abandoned and d...
-4. Who may be Salvors
It is a general rule, that persons who are bound by their legal duty to render salvage services, cannot claim salvage compensation therefor. (s) Therefore the master or crew of the ship in peril, cann...
-5. Of Salvage Compensation
This is never merely pay, or in the nature of wages. It is always a reward. (m) The amount is determined by the danger incurred, by the skill manifested, by the difficulty of the service, and by its d...
-7. How the Claim for Salvage Compensation may be Barred
There may be a custom to render services gratuitously, which would bring these services under the same rule which is applied to services rendered as a legal duty. (g) Thus, it has been said, (t) Th...
-D. - Of General Average
More than three thousand years ago, the commerce of the Mediterranean appears to have been governed by the laws of Rhodes; so called, because they originated in that island, then a mart of commerce. O...
-1. The Sacrifice must be Voluntary
General average usually occurs by a jettison of the cargo, to lighten the ship; or by cutting away the masts and sails or rigging to relieve the ship, which is substantially a jettison of them. (w) ...
-2. The Sacrifice must be Necessary
It is seldom that this question occurs in practice. If the sacrifice be without necessity, he who causes it must be responsible for his folly or his wickedness. It must be remembered, however, that...
-4. What Constitutes a Sacrifice
It has been said by a very high authority, that If the master's situation were such, that, but for a voluntary destruction of a part of the vessel or her furniture, the whole would certainly and unav...
-5. Of the Value upon which Contribution is Assessed
There is now no absolute uniformity of rule or practice on this subject; none, at least, which suffices to answer all questions. It may be said, however, generally, that the vessel contributes for her...
-6. Of the Adjustment of General Average
It may be a general rule, that the port of destination is the proper place for a final adjustment of the average. (g) But as the master has a lien on all goods saved, for the contribution due from the...
-Section V. Of Persons Employed In A Ship. A. - Of the Master
The master is appointed and employed by the owner, and the owner is bound to all other parties for the competency of the master, that being necessary to make the ship seaworthy. (j) But the master is ...
-Of Persons Employed In A Ship. A. - Of the Master. Continued
B. & Ald. 2; Cannan v. Meaburn, 1 Bing. 465; Brown v. Wilkinson, 16 M. & W. 391; The Mary Caroline, 8 W. Bob. 101; Leycester v. Logan, 3 Kay & J. 446; Dobree v. Schroder, 6 Sim. 291, 2 Mylne & C. 489;...
-B. - Of the Seamen. 1. Of The Shipping Articles
The United States statutes require every vessel bound from a home port to a foreign port, (f) or, if it be of fifty tons or more, bound from a port in one State to a port in any other than an adjoinin...
-2. Of The Wages Of Seamen
Seamen have a lien for their wages l which attaches in admiralty to the ship and the freight, and to all the proceeds thereof, wherever they are, if within the reach of the court;(r) and whether the f...
-8. Of Provisions
Not only does the common law, by the general principles of contract, require the owner to supply the ship with provisions of due quality and in due quantity, (v) but statutes of the United States (w) ...
-4. Care of Seamen in Sickness
it is provided by statute that the ship shall be provided with a suitable chest of medicines, in good condition, put up by some the statute quantity of all the three articles be put on board, and ther...
-5. Of the return of the Seamen to this Country
Our laws carefully guard the right of the sailor to be brought back to his home, and protect this right by minute precautions. The master must, when requested, present to the Consul or Commercial Agen...
-6. Of The Punishment Of Seamen
The disobedience or misconduct of seamen must be punishable by the master or officers with great severity if need be, from the necessity of preserving discipline, on which the safety of life and prope...
-Of The Punishment Of Seamen. Continued
(j) The Minerva, 1 Hagg. Adm. 368; Prince Edward v. Trevellick, 4 Ellis & B. 59; Ward v. Ames, 9 Johns. 138; Relf v. Ship Maria, 1 Pet Adm. 198; Steele v. Thatcher, Ware, 94. (k) Savary v. Clements...
-Chapter XVII. Of The Law Of Marine Insurance. Section I. Of The Contract. A. - What this Contract is
By this contract the insurer undertakes to indemnify the insured against loss on maritime property, arising from maritime perils, on a certain voyage, or during a certain period; the property, the per...
-B. - Of the Policy
This ancient instrument has remained unchanged, in most of its peculiar phraseology, for a long period, and is everywhere substantially the same; and a long and varied litigation has affixed a definit...
-C. - Of Insurance through an Agent
The general principles of authority, of adoption and ratification, apply to contracts of insurance. An agent who causes an insurance to be made must have full power to do so. This power may be give...
-D. - Of the Transfer of the Policy or of the Property
There is an important difference between the transfer of a policy and the transfer of the property insured by the policy. Policies of insurance are not negotiable, (e) but may be assigned, and the ass...
-E. - Of Requirements in the Policy
If a policy provide that not only a change of the owners, but a change of masters if not notified to the insurers, shall avoid the policy, the insured cannot recover for a loss occurring while the shi...
-F. - Of the Premium
The premium, which is the consideration for the promise of the insurers, is equally valid for that purpose, whether it is paid in money when the policy is delivered, or by a promissory note, or remain...
-Section II. Of The Parties To The Contract
Any parties who are competent to make any contract, may make the contract of insurance. The principal exception in practice, to the general rule, is this: an insurance for the benefit of an alien enem...
-Section III. Of The Property Or Interest Insured
All maritime property consists of either the ship and its appurtenances, (d) or of the cargo which the ship carries, (e) or of the freight which the ship earns by carrying the cargo, (f) 1 * or of the...
-Section IV. Of The Beginning And The End Of The Risk
A policy of insurance should define, with great precision, the time when the risk insured against begins, and when it terminates. This definition may be, either by referring to a moment of time, or to...
-Section V. Of Open And Of Valued Policies. A. - Of Open Policies
As wager policies are now void both in England and in this country, the insured must have at risk some interest in the subject of insurance. (q) This may be any legal or equitable interest whatever, i...
-B. - Of Valued Policies
Where the value of the property insured is agreed upon by the parties, and this value is stated in the policy, usually or always by the phrase valued at $------, such a policy is called a valued pol...
-Section VI. Of Double Insurance
That is a double insurance, where, by different policies, the same interest of the same parties in the same subject-matter, is insured against the same risks; and it is over-insurance if the whole amo...
-Section VII. Of Re-Insurance
Any person who is an insurer of property, and therefore liable for its loss, whether as the insurer under a policy, or as common carrier, or in any other way, has an interest in the policy for which h...
-Section VIII. Of The Risks Insured Against. A. - General Rules
The marine policies used in the United States, enumerate the perils against which they insure. These are usually perils (w) Reed v. Cole, 3 Burr. 1612; Union Ins. Co. v. Commercial Ins. Co. 2 Curti...
-C. - Of Collision
Injury by collision has given rise to a peculiar question in the law of insurance. We have seen in the chapter on the Law of Shipping, that if a vessel colliding with another is in fault, she is oblig...
-E. - Of Barratry
As to the meaning of this word, or of what constitutes this offence, the cases are in conflict. On the whole, however, we are satisfied that three essentials are necessary to constitute barratry. It m...
-F. - Of Capture
The usual phrase is against all captures at sea, or arrests, restraints or detentions of all kings, princes, and people. (k) l The word illegal or unlawful is sometimes inserted before captures....
-G. - Of General Average
What constitutes a claim of general average has been fully considered in the chapter on contracts of shipping. But this claim may be placed among the risks against which insurance is made, because if ...
-H. - Of Salvage
Of the general law of maritime salvage we have fully treated in the Law of Shipping. It does not seem necessary to add more in (s) Maggrath v. Church, 1 Caines, 196; Watson v. Marine Ins. Co. 7 Joh...
-Section IX. Of Total Loss. A. - Of Actual Total Loss
The property insured may be totally lost, in fact. This happens only when a ship is never heard from, or is wholly destroyed by fire, or submerged beneath the water. Even in these cases, it is not unc...
-B. - Of Constructive Total Loss, and of Abandonment
Where the vessel or cargo is lost, but a valuable part remains in the owner's hands, or comes to him afterwards, either by salvors, or by a restoration of seized property, this cannot be called an act...
-B. - Of Constructive Total Loss, and of Abandonment. Part 2
(c) See post, note (g). (d) Center v. American Ins. Co. 7 Cowen, 564; Ruckinan v. Merchants Ins. Co. 5 Duer, 869; Bryant v. Commonwealth Ins. Co. 6 Pick. 131. (e) Cambridge v. Anderton, 2 B. & C...
-B. - Of Constructive Total Loss, and of Abandonment. Part 3
Whether the valuation is to be considered when the question is whether it would be worth while to repair, see Irving v. Manning, 1 H. L. Cas. 287; Allen v. Sugrue, 8 B. & C. 561; Orrok v. Commonwealth...
-9. - How and when Abandonment should be made
It may be enough to say on this point, that it must be definite and unequivocal; and it must amount to an absolute abandonment and transfer to the insurers, of all interest and property in the subject...
-D. - Of Acceptance of Abandonment
If insurers accept an abandonment properly made, they are bound thereby, and an acceptance waives all objections to a want of formality. (w) The acceptance may be constructive; and insurers were he...
-E. - Of Revocation of Abandonment
If the insurers accept an abandonment either expressly or by implication, the transfer becomes irrevocable, unless revoked by mutual consent. But either party may waive the rights acquired by it. If, ...
-Section X. Of Partial Loss. A. - What constitutes a Partial Loss
Every loss is a partial loss which is less than a total loss, either actual or constructive. The phrase particular average is frequently used, as the equivalent of partial loss. An essential...
-B. - How the Cost of Repairs is estimated
All the rules applied in estimating the cost of repairs are not entirely settled, although the most important ones may be. The repairs and the new work are to conform in material and style to the o...
-C. - Of Total Loss following a Partial Loss
There may be a partial loss for an injury which was repaired, and has been paid for by the insurers; and then a subsequent total loss for which they would be liable without the right of deducting for ...
-Section XI. Of Express Warranties
Warranties may be express or implied, and in either case the general law of warranty applies to them. Express warranties exist when the assured, in whatever is a * part of the policy, undertakes th...
-Section XII. Of Representations And Of Concealments
It is sometimes difficult to discriminate between express warranties and representations; but it is important to do so. as the (w) Pettegrew v. Pringle, 8 B. & Ad. 614; Lang v. Anderdon, 3 B. & C. ...
-Of Representations And Of Concealments. Continued
(k) Flinn v. Headlam, 9 B. & C. 003; Clason v. Smith, 3 Wash. C. C. 156; Rice v. New England Ins. Co. 4 Pick. 443; Sibbald v. Hill, 2 Dow, P. C 263. (l) Burritt v. Saratoga Co. Ins. Co. 5 Hill, 188...
-Section XIII. Of Implied Warranties. A. - Of Seaworthiness
The warranty of seaworthiness is by far the most important of the warranties implied by law. It enters as its very foundation into every contract of insurance on a ship. The general meaning of seawort...
-Of Implied Warranties. A. - Of Seaworthiness. Continued
Usage may have great influence in determining this point. Thus, in many cases, a log-line and a quadrant may be enough. But in other cases, it might be necessary that the ship should * have a chronome...
-B. - Of Deviation
There is always a warranty that the ship shall pursue her proper course between the termini of the voyage insured, and therefore these termini should be distinctly stated in the policy. It is therefor...
-B. - Of Deviation. Continued
8 Camp. 469; Kingston v. Girard, 4 Dall. 274. (v) Thus, a vessel damaged by a peril of the sea, may go out of her course to refit. Motteux v. London Ass. Co. 1 Atk. 545; Coffin v. Newburyport Ins. ...
-Section XIV. Of The Adjustment
The adjustment of a claim on insurers is not always required; nor is any particular form required. In all the United States, adjustments are usually made in a similar way, and the larger mercantile po...
-Chapter XVIII. Of The Law Of Fire Insurance. Section I. Of The Form Of The Contract
The general principles of contracts suffice to answer many of the questions raised by fire policies, and the principles of marine insurance are generally applicable. It will not therefore be necessary...
-Of The Law Of Fire Insurance. Section I. Of The Form Of The Contract. Part 2
1 See Eames v. Home Ins. Co. 94 U. S. 621; Harris's Case, L.R7 Ch. 587; Piedmont Ins. Co. v. Ewing, 92 U. S. 377; Mut Life Ins. Co. v. Young, 23 Wall. 85; Strohn v. Hartford Ins. Co. 37 Wis. 625. I...
-Of The Law Of Fire Insurance. Section I. Of The Form Of The Contract. Part 3
(i) See Wood v. Hartford Ins. Co. 18 Conn. 688; Egan v. Mut. Ins Co. 6 Denio, 826; Farmers Ins. Co. v. Snyder, 16 Wend. 481; Duncan v. Sun Ins. Co. 6 Wend. 488. If by any words of reference, the stip...
-B. - Of the Description of the Property Insured
If a policy of fire insurance contain a scale of premiums, calculated upon what is regarded by the insurers as the greater or lesser risk of fire in different classes of buildings, or goods, or other ...
-B. - Of the Description of the Property Insured. Part 2
1 Mershon v. National Ins. Co. 84 la, 87. evidence was offered and received, showing that a livery stable was materially more hazardous than a tavern * barn. It is not easy to draw a precise rul...
-B. - Of the Description of the Property Insured. Part 3
Ins. Co. 54 N. T. 193; Franklin Ins. Co. v. Martin, 11 Vroom, 568; Ashworth v. Builders' Ins. Co. 112 Muss. 422. 1 Morse v. Buffalo Ins. Co. 30 Wis. 534, was to the point that a policy on a steambo...
-B. - Of the Description of the Property Insured. Part 4
A question may arise in fire policies, as in marine policies, in regard to the termini of the risk. This must generally relate to the time when the policy begins, when it attaches, and when it termina...
-C. - Of Alterations in the Property
Many cases have arisen where the effect of alterations in the property insured is considered. The general rule must be, that mere alterations, although important and extensive, do not of themselves di...
-D. - Of Warranty, Representations, and Concealment
In most respects the law of warranty and representation is the same in fire as in marine insurance. A warranty is a part of the contract; and if it is broken, there is no valid contract, (w) Young ...
-D. - Of Warranty, Representations, and Concealment. Part 2
The word warranty need not be used if the language is such as to import unequivocally the same meaning. And an indorsement made upon the policy before it is executed, may take effect as a part of it. ...
-D. - Of Warranty, Representations, and Concealment. Part 3
2 Cushman v. United States Ins. Co. 70 N. Y. 72; Miller v. Mut. Ben. Ins. Co. 31 Ia. 216. binding upon them; and the effect of it would seem to be to give to representations the force and influence...
-D. - Of Warranty, Representations, and Concealment. Part 4
reference to the insurance or to the risk, or to the value of the property, the policy shall be void. In such a case the insured must make true answers to all the interrogatories, although they may be...
-D. - Of Warranty, Representations, and Concealment. Part 5
(x) Burritt v. Saratoga Co. Ins. Co. 5 Hill, 188; Gates v. Madison Co. Ins. Co. 1 Seld. 474; Clark v. Manuf. Ins. Co. 8 How. 235; Cumberland Valley Ins. Co. v. Schell, 29 Penn. State, 31. See Satterth...
-Section II. Of The Interest Of The Insured
The rule here is the same as in marine insurance. (i) Any interest which would be recognized by a court of law or equity, is an insurable interest; (j) 1 but not a mere expectancy or probable interest...
-Of The Interest Of The Insured. Part 2
(n) Converse v. Citizens Ins. Co. 10 Cush. 37. (o) Columbian Ins. Co. v. Lawrence, 2 Pet. 25; Traders Ins. Co. v. Robert, 9 Wend. 404, 17 id. 631; Tillou v. Kingston Ins. Co. 7 Barb. 570; Stetson v...
-Of The Interest Of The Insured. Part 3
1 So it was held in Castellain v. Preston, 8 Q. B D. 613, in the case of an unpaid vendor who received insurance money for damage to a house by fire after the date of the contract of its sale, but bef...
-Section III. Of The Risk Assumed By The Insurers
It seems to be held, that the policy fails to attach, not only if the property does not exist at the time of the insurance, or if it is then on fire, but also if it is at that time exposed to a near a...
-A. - What is Fire?
This is a difficult question even in a scientific point of view; or rather, science acknowledges no such thing as fire. But by fire, in the common use of the word, is probably meant flame. Flame, howe...
-B. - Of the Liability of Insurers for the Consequences of Fire
The universal rule of contracts, causa proxima non remota spectatur, applies also to insurance against fire. But both usage and law give a very liberal construction in favor of the assured under fire ...
-C. - Of a Loss caused by the Negligence of the Insured
There is this difference between marine policies and fire policies. The perils against which marine policies insure are generally, * although not always, such as could not be averted by any care or sk...
-Section IV. Of Alienation
It is quite certain, that policies against fire are contracts only between the insured and the insurer, and do not pass to any other party without the consent of the insurers. (x) If, therefore, befor...
-Of Alienation. Continued
nor a conditional sale, where the condition is precedent and not yet performed; (h) nor a mere agreement between the owner of property insured and another person, to represent to the creditors of the ...
-Section V. Of Valuation
This is seldom made in fire policies, and perhaps never made with the purpose and effect of valuation in marine policies. Whether a loss be total or partial, the insurers are bound to pay so much of t...
-Section VI. Of Double Insurance And Of Re-Insurance. A. - Of Double Insurance
We have seen, that in marine policies doable insurance is guarded by many rules, and not unfrequently provided for in the policies. There is, however, in contracts of insurance against fire, a much st...
-Of Double Insurance And Of Re-Insurance. A. - Of Double Insurance. Continued
1 That a renewal is not such other insurance if notice was given with the original insurance, unless the renewal is in a new name, by reason of a change of interest, see Pitney v. Glens Falls Ins. C...
-B. - Of Re-insurance
Re-insurance means the same thing in fire policies as in marine policies, and is in general governed by the same rules. Of these, the principal one is, that a re-insurer is entitled to make the same d...
-Section VII. Of Proof And Adjustment
Policies frequently contain express provisions as to notice of loss, and proof, and adjustment; and there must be a substantial compliance with all these requirements, (b) 1 and such a compliance is s...
-Chapter XIX. Of The Law Of Life Insurance. Section I. Of The Terms Of The Contract. A. - How the Contract is made
Insurance against death is very different in its nature from insurance against marine perils or against fire. Many of the questions which arise under either or both forms of these insurances are not p...
-B. - Of Warranty and Representations
This subject assumes in life policies an unusual importance. The application must be made as in fire policies, by a written document, in which very many questions are put, all of which*must be answere...
-B. - Of Warranty and Representations. Part 2
Dyspepsia is a very common disease, and is always inquired about. Undoubtedly it sometimes kills, but generally it does not. But whether it has a tendency to shorten life, or whether in any particular...
-B. - Of Warranty and Representations. Part 3
after the policy * was made he died of fever; but the insurers proved, that some years before the policy was made, he tion of the lungs.' Again, it is obvious that the insurance company meant to guard...
-B. - Of Warranty and Representations. Part 4
(o) Morrison v. Muspratt, 4 Bing. 60; Everett v. Desborough, 5 id. 503; Lindenau v. Desborough, 8 B. & C. 586; Hockman v. Fernie, 3M.&W. 505. (p) See Southcombe v, Merriman, Car. & M. 286. 1 Tha...
-C. - Of Restrictions and Exceptions in Life Policies
These may be regarded as coming under the law of warranty. Principles may be applied to them analogous to those applied to deviation under marine policies, the question being whether there is a change...
-C. - Of Restrictions and Exceptions in Life Policies. Continued
1 Permission to engage in sea service on the prior payment any year of an additional premium requires such a payment every year of continuance in sea service Ayer v. New Eng. Ins. Co., 109 Mass. 430...
-Section II. What Interest Is Insurable
It may be said here, as in marine and life policies, that any legal or equitable interest may be insured. It is very common the direction of insurance offices should not choose to undertake the risk o...
-What Interest Is Insurable. Part 2
(f) Anderson v. Edie, 1795, 2 Park on Ins. (8th ed.) 915. In this case, Lord Kenyon said It was singular that this question had never been directly decided before; that a creditor had certainly an in...
-What Interest Is Insurable. Part 3
(p) See Loomis v. Eagle Ins. Co. 6 Gray, 896; Miller v. Eagle Ins. Co. 2 E. D. Smith, 268; Trenton Ins. Co. v. Johnson, 4 N. J. 576, decided in New Jersey, in which State all wagers are not contrary t...
-Section III. Of Assignment And Transfer
Life policies are very frequently assigned;1 and many are made for the purpose of assignment, to enable the insured thereby to give security to his creditor, (u) and the assignee recovers the whole am...
-Section IV. Of The Time When A Policy Attaches Or Terminates
It would seem that a policy may take effect, if the bargain be completely made, although before any delivery of it the life-insured has died, and delivery was withheld in consequence. It need not be a...
-Section V. Of The Premium
This is usually paid in money, or by a note at once, if the insurance be for a year or less.1 If for more than a year, it is usually payable annually; and it is common to permit the annual payment to ...
-Of The Premium. Part 2
2 See Ins. Co. v. Dutcher, 95 U. S. 269; Northwestern Ins. Co. v. Bonner, 36 Ohio St. 51. A policy terminable by failure to pay a premium or any premium note when due, is determined by a failure to pa...
-Of The Premium. Part 3
3 Where a policy was to be void unless each premium was paid within a certain number of days after it fell due, there was held to be no waiver or forfeiture by reason of a mistaken statement of the se...
-Part II. The Law Of Contracts Considered In Reference To The Operation of Law Upon Them. Chapter I. Construction And Interpretation Of Contracts. (A). Section I. - General Purpose And Principles Of Construction
The importance of a just and rational construction of every contract and every instrument, is obvious. But the importance of having this construction regulated by law, guided always by distinct princi...
-Section II. Of The Effect Of Intention
The first point is, to ascertain what the parties themselves meant and understood. But, however important this inquiry may be, it is often insufficient to decide the whole question. The rule of law is...
-Of The Effect Of Intention. Continued
A distinction is to be observed between the construction of a contract and the correction of a mistake. For, if it were in proof that the parties had intended to use one word, and that another was in ...
-Section III. Some Of The General Rules Of Construction
The subject-matter of the contract is to be fully considered. (q) There are very many words and phrases which have one meaning in ordinary narration or composition, and quite another when they are use...
-Some Of The General Rules Of Construction. Part 2
(v) Coles v. Hulme, 8 B. & C. 568. (w) Moore v. Magrath, Cowp. 9; Cholmondeley v. Clinton, 2 B. & Ald. 625. (x) Coldham v. Showler, 3 C. B. 312; Makepeace v. Harvard College, 10 Pick 298; Sibley...
-Some Of The General Rules Of Construction. Part 3
(g). (c) Shep. Touch. 82; Roe v. Tranmarr, Willes, 682. (d) Smith v. Frederick, 1 Russ. 174, 209; Adams v. Steer, Cro. Jac. 210; Lynch v. Livingston, 8 Barb. 463, 2 Seld. 422. (e) Shep. Touch...
-Some Of The General Rules Of Construction. Part 4
Railway Co. 2 Man. & G. 134; Parker v. Great Western Railway Co. 7 id. 253; Mohawk Bridge Co. v. Utica & Sch. R. R. Co. 6 Paige, 554. In Priestley v. Foulds, 2 Man. & G. 194, in the case of a legislat...
-Some Of The General Rules Of Construction. Part 5
In cases of mutual gift or mutual promise, where neither party is more the giver or undertaker than the other, this rule would have no application. (y) Nor does it seem that it is permitted to ...
-Some Of The General Rules Of Construction. Part 6
(e) Barfoot v. Freswell, 3 Keble, 465; Saltourn v. Houstoun, 1 Bing. 433; Sampson v. Easterby, 9 B. & C. 505. (f) Clapham v. Moyle, 1 Lev. 155, 1 Keble, 842, Shep. Touch. 122; Huff v. Nickerson, 27...
-Some Of The General Rules Of Construction. Part 7
So, it is a general proposition, that where clauses are repugnant and incompatible, the earlier prevails in deeds and other instruments inter vivos, if the inconsistency be not so great as to avoid th...
-Some Of The General Rules Of Construction. Part 8
(p) Shep. Touch. 88; Co. Litt. 112 b; Paramour v. Yardley, Plowd. 541; Doe v. Biggs, 2 Taunt. 109; Constantino v. Constantine, 6 Ves. 100; Sherratt v. Bentley, 2 Mylne & K. 149; 1 Jarman on Wills, 411...
-Section IV. Entirety Of Contracts
The question whether a contract is entire or separable is often of great importance. Any contract may consist of many parts; and these may be considered as parts of one whole, or as so many distinct c...
-Entirety Of Contracts. Continued
(c) Thus, if a ship be built upon a special contract, and it is part of the terms of that contract that given portions of the price shall be paid according to the progress of the work, namely, part wh...
-Section V. Apportionment Of Contracts
A contract is said to be apportionable when the amount of consideration to be paid by the one party depends upon the extent of performance by the other. The question of apportionment must be carefully...
-Apportionment Of Contracts. Continued
* Thus, if one party is prevented from fully performing his contract by the fault of the other party, it is clear that the party thus in fault cannot be allowed to take advantage of his was paid for t...
-Section VI. Of Conditional Contracts
It is sometimes of great importance to determine whether there be a condition in a contract or an instrument. If, for breach of it, have an election to refuse to receive what has been done, and thus d...
-Section VII. Of Mutual Contracts
It is a similar question - sometimes indeed the very same question - whether covenants are mutual, in such sense that each is as a condition precedent to the other. And also whether covenants or agree...
-Section VIII. Of The Presumptions Of Law
There are some general presumptions of law which may be considered as affecting the construction of contracts. Thus it payment, or on some day previous, the covenants to pay the instalments falling du...
-Of The Presumptions Of Law. Part 2
1794, or sooner, in case C should before that time have taught him the bleaching of such materials, pay to C the further sum of 260. In covenant by C against D, the breach assigned was the ...
-Of The Presumptions Of Law. Part 3
(s) Siboni v. Kirkman, 1M. & W. 418, 423; Quick v. Ludborrow, 8 Bulst. 80; Marshall v. Broadhurst, 1 Cromp. & J. 403. (t) See ante, vol. i. pp. *127, 181. (u) See ante, vol. i. p. *11, n...
-Section IX. Of The Effect Of Custom Of Usage
A custom which may be regarded as appropriate to the contract and comprehended by it, has often very great influence in the construction of its language. (e) The general reason (c) Crocker v. The F...
-Of The Effect Of Custom Of Usage. Part 2
(f) It has long been settled, says 1 On this ground in transactions in stocks through brokers who are members of the stock exchange, its rules and usages become part and parcel of such transacthe...
-Of The Effect Of Custom Of Usage. Part 3
(g) Thus, in an action on a policy of insurance on a voyage to any port in the Baltic, evidence was admitted to prove, that in mercantile contracts the Gulf of Finland is considered as within the Ba...
-Of The Effect Of Custom Of Usage. Part 4
It is obvious that the word custom is used in many senses, or rather that it embraces very many different degrees of the same meaning. By it may be understood, either that ancient and universal, and...
-Of The Effect Of Custom Of Usage. Part 5
1 C. & P. 60. See also as to the necessity that evidence to establish usage must be definite and certain, Oelricks v. Ford 28 How. 40. Nor is it necessary that the word sought to be interpreted by ...
-Of The Effect Of Custom Of Usage. Part 6
As a general rule, the knowledge of a custom must be brought home to a party who is to be affected by it. But if it be shown that the custom is ancient, very general and well known, it will often be a...
-Of The Effect Of Custom Of Usage. Part 7
Lastly, it must be remembered that no custom, however universal, or old, or known, unless it has actually passed into law, has any force over parties against their will. Hence, in the interpretation o...
-Section X. Of The Admissibility Of Extrinsic Evidence In The Interpretation Of Written Contracts
It is very common for parties to offer evidence external to the contract, in aid of the interpretation of its language. The * general rule is, that such evidence cannot be admitted to contradict or va...
-Of The Admissibility Of Extrinsic Evidence In The Interpretation Of Written Contracts. Part 2
(c) When there is a devise of the estate purchased of A, or of the farm in the occupation of B, nobody can tell what is given till it is shown by extrinsic evidence what estate it was that was purcha...
-Admissibility Of Extrinsic Evidence In Written Contracts Interpretation. Part 3
* Where the language of an instrument has a settled legal meaning, its construction is not open to evidence. Thus, a * promise to pay money, no time being expressed, means a promise to pay it on deman...
-Admissibility Of Extrinsic Evidence In Written Contracts Interpretation. Part 4
Knapp v. Harden, 6 C. & P. 745; Deshon v. Merchants Ins. Co. 11 Met 190; Edwards v. Goldsmith, 16 Penn. St. 43; Coates v. Sangston, 6 Md. 121; Knight v. Knotts, 8 Rich. Law, 36. Also Heatherley v. Rec...
-Admissibility Of Extrinsic Evidence In Written Contracts Interpretation. Part 5
(w) Clifford v. Turrell, 1 Younge & C. Cat. in Ch. 138; Bedell's case, 7 Rep. 133 a; Shaw v. Leavitt, 8 Sandf. Ch. 163, 173; Villers v. Beaumont, Dyer, 146 a; Doe d. Milburn v. Salkeld, Willes, 677. ...
-Admissibility Of Extrinsic Evidence In Written Contracts Interpretation. Part 6
(d) Hudson v. Clementson, 18 C. B. 218, 36 Eng. L. & Eq. 332. (e) The rule as to latent and patent ambiguities has been regarded as furnishing a decisive test by which to determine in all cases whe...
-Admissibility Of Extrinsic Evidence In Written Contracts Interpretation. Part 7
The rules of Lord Bacon rest entirely upon the principle that the law will not make, nor permit to be made, for parties, a contract other than that which they have made for themselves. They can have n...
-Admissibility Of Extrinsic Evidence In Written Contracts Interpretation. Part 8
13 Pick. 623; Brewster v. McCall, 15 Conn. 274, 296. - So where the question is one purely of intention, the belief of the author of an instrument, as to facts necessarily involved in it, may have an ...
-Admissibility Of Extrinsic Evidence In Written Contracts Interpretation. Part 9
(l) See ante, p. * 667, n. (e). This intention, of course, is to be ascertained, in all cases, except that of latent ambiguity proper, by a development of the circumstances under which the instrument ...
-•Chapter II. The Law Of Place. Section I. - Preliminary Remarks
If one or both parties to a contract entered into it away from their home, or if a contract, or questions dependent upon it, come into litigation before a foreign tribunal, the construction of the con...
-Section II. General Principles
The first principle we state is this. Laws have no force, by their own proper vigor, beyond the territory of the State by which they are made; excepting, for some purposes, the high seas, or lands ove...
-General Principles. Continued
The general rule as to the construction of contracts is, that if the relate to movables, which have no place. no sequelam, in the language of the civil law, for mobilia inhoerent ossibus domini, ...
-Section III. Capacity of Parties
It must be remembered that the rule is, that persons have capacity to contract; and the exception is, their want of capacity. * This exception, therefore, must be made out. And capacity or competency ...
-Capacity of Parties. Continued
* Thus, if a woman at the age of nineteen, whose domicil was in Massachusetts, having gone into Vermont (where women are so far of age at eighteen that they may bind themselves at that age for things ...
-Section IV. Domicil
Every person has, in law, a home, or domicil; (m) and every domicil which one has, whether the original domicil or a subsequent one, continues until a new one is acquired, (n) and when a new one is ac...
-Domicil. Continued
2 A man having acquired a domicil of choice, may abandon it without being obliged to acquire a new domicil. Per Jessel, M. B., King v. Foxwell, 3 Ch. D. 618. See Kellogg v. Winnebago, 42 Wis. 97. (...
-Section V. The Place Of The Contract
The rules of law in respect to domicil are quite well settled, and when difficult questions occur, they are usually questions of fact. But the law as to what shall be deemed the place of the contract,...
-The Place Of The Contract. Part 2
Europe, whose language, however, does not appear to me to justify any such interpretation when properly considered, and is perfectly compatible with the ordinary rule, that the interest must be or oug...
-The Place Of The Contract. Part 3
A note dated in one State, and made in another, is presumed to be payable where dated, and is governed by the laws of that State. (hi) 2 And if a loan is made where the parties reside, and is payable ...
-Section VI. Of The Law Of The Forum In Respect To Process And Remedy
Every State holds jurisdiction over all persons and all things within its dominion, and no further. In England and America, foreigners may avail themselves of the courts for suits or defences against ...
-Of The Law Of The Forum In Respect To Process And Remedy. Part 2
But if I can show that it is a personal security affecting the person and following it everywhere, whatever may be the law of France as to the form of proceeding, yet when the party is found in this o...
-Of The Law Of The Forum In Respect To Process And Remedy. Part 3
(s) Leroux v. Brown, 12 C. B. 801,14 Eng. L. & Eq. 247. See the case stated, post, vol. iii. p. * 57, n. (w) (t) Bank of Galliopolis v. Trimble, 6 B. Mon. 599. In some of our States, as in Iowa,...
-Section VII. Of Foreign Marriages
It seems to be generally admitted, and is certainly a doctrine of English and American law, that a marriage which is valid * in the place where it is contracted is valid every where. (v) The necessity...
-Of Foreign Marriages. Part 2
We conceive the second marriage acquires no force by the celebration of it having been in South Carolina. We have been at some loss to determine in what sense we are to understand the phrase in the ca...
-Of Foreign Marriages. Part 3
(w) Greenwood v. Curtis, 6 Mass. 368, 378; Sneed v. Ewing, 6 J. J. Marsh. 460, 489; Sutton v. Warren, 10 Met 451. And see Wightman v. Wightman, 4 Johns. Ch. 343. (x) See Sutton v. Warren, 10 Met. 4...
-Of Foreign Marriages. Part 4
(z) It might be a different question, whether his children by all his wives, who were equally his wires, were all, or were any of them legitimate. In Wall v. Williamson, 8 Ala. 48, the court say: A p...
-Of Foreign Marriages. Part 5
1 If there is no marriage contract, the wife's personal property rights are to be governed by the laws of the intended residence, Mason v. Homer, 105 Mass. 116; Mason v. Fuller, 36 Conn. 160. An anten...
-Section VIII. Of Foreign Divorces
The relation of the law of place to the subject of divorce presents questions of much difficulty. And although many cases involving some of these questions, have been decided after very full considera...
-Of Foreign Divorces. Continued
1 As to divorce in England of foreign subjects, see Le Sueur v. Le Sueur, 1 P. D. 139; Niboyet v. Niboyet, 3 P. D. 52. An English divorce court will recognize a Scotch divorce of persons there domicil...
-Section IX. Foreign Judgments
The principle, that questions which have been distinctly settled by litigation shall not be again litigated, has been in many cases extended to foreign judgments; and, although the whole law on this s...
-Foreign Judgments. Part 2
(v) Embree v. Hanna, 5 Johns. 101. In this case the defendant pleaded a foreign attachment pending in Maryland for the same demand. And Kent, C. J., said: If the defendant would have been protected u...
-Foreign Judgments. Part 3
(y) Buchanan v. Rucker, 0 East, 192; Thurber v. Blakbourne, 1 N. H. 242 ; Bissell v. Briggs, 9 Mass. 462; Aldrich v. Kinney, 4 Conn. 380; Shumway v. Stillman, 6 Wend. 447; Curtis v. Gibbs, 1 Pennin...
-Foreign Judgments. Part 4
(z) Snell v. Foussat, 3 Binn. 229, n. ; Cheriot v. Foussat, id. 220. (a) Bank of North America v. M'Catl, 4 Binn. 371. Another essential is, that the defendant in the foreign action had such per...
-Chapter III. Defences. Section I. - Payment Of Money. 1. Of the Party to whom Payment should be made
Payment to an agent in the ordinary course of business binds the principal, unless the latter has notified the debtor beforehand that he requires the payment to be made to himself. (a)1 And circumstan...
-Payment Of Money. 1. Of the Party to whom Payment should be made. Part 2
(e) Shepard v. Ward, 8 Wend. 642. And it is a general rule, that payment to one partner is good, and binds the firm. Duff v. The East India Co. 16 Ves. 198; Yandes v. Lefavour, 2 Blackf. 371; Gregg v....
-Payment Of Money. 1. Of the Party to whom Payment should be made. Part 3
(q) Hatsall v. Griffith, 4 Tyrwh. 488. In this case two of three part-owners of a vessel, acting for themselves and the other part-owner, employed an agent to sell the whole vessel. He did so, and pai...
-Payment Of Money. 1. Of the Party to whom Payment should be made. Part 4
1 If a creditor, upon payment of part of an undisputed account, gives a receipt in full, he can recover the balance, although the receipt was given knowingly and there was no error or fraud. Ryan v. W...
-Payment Of Money. 1. Of the Party to whom Payment should be made. Part 5
1 Paddleford v. Thacher, 48 Vt. 574. (y) Pinners case, 6 Rep. 117; Brooks v. White, 2 Met. 288; Smith v. Brown, 8 Hawks, 680. (z) As if the debtor give his own negotiable note for part of the de...
-6. OF Payment by Check
Payment is also often made by the debtor's check upon a bank. A check is a draft, and the law of bills and notes is generally applicable to it If given in the ordinary course of business, and unattend...
-6. OF Payment by Note
Payment is also often made by the debtor's giving his own negotiable promissory note for the amount.1 In Massachusetts, such note is said in some cases to be an absolute payment and a discharge of the...
-D. Of Stake-holders and Wagers
Payment is sometimes made to a third party, to hold until some question be determined, or some right ascertained.1 The third party is then a stake-holder, and questions have arisen as to his rights an...
-D. Of Stake-holders and Wagers. Continued
1 If a stake-holder in a presidential election bet pays over the money after forbidden so to do, an action will lie against him for the money, and it is immaterial that the reason for forbidding payme...
-9. Of Appropriation of Payments
There are many cases relating to the appropriation of a payment, where the creditor has distinct accounts against the debtor. In Cremer v. Higginson, (j) l Mr. Justice Story lays down with much precis...
-Of Appropriation of Payments. Part 2
1 Gray, 630. But the case of Ayer v. Hawkins, 19 Vt. 26, shows that a creditor having several notes against his debtor, all of which are barred by the statute of limitations, may appropriate a general...
-Of Appropriation of Payments. Part 3
If a partner in a firm owe a private debt to one who is also a creditor of the firm, and make to this creditor a general payment, but of money belonging to the firm, the payment must be appropriated t...
-Of Appropriation of Payments. Part 4
Generally, the law favors the surety, especially if his suretyship be not for a previously existing debt. So, where one has given security for the payment for goods to be afterwards supplied to his pr...
-Section II. Of Performance
Having treated of payment as the specific defence to an action grounded on alleged non-payment, we will now speak of performance, generally, as the most direct contradiction and the most complete defe...
-Of Performance. Part 2
(o) This was settled in the case of Johnson v. Lancaster, Stra. 576. The report of that case is as follows: It was settled on demurrer, that a tender is pleadable to a quantum meruit, and said to hav...
-Of Performance. Part 3
Bacon v. Charlton, 7 Cush. 581; Perron v. Monmouthshire Railway Co. C. B. (1853), 20 Eng. L. & Eq. 258. And see Lloyd v. Walkey, 9 C. i P. 771. On the other hand, if a declaration in tort is general, ...
-Of Performance. Part 4
1 Where a mortgage for $600 was assigned to and, as the jury found, held by the defendant for $300, a tender of $300 and interest by the mortgagor discharged the mortgage. Stewart v. Brown, 48 Mich. 3...
-Of Performance. Part 5
(f) This is the rule in Connecticut from usage. Tracy v. Strong, 2 Conn. 659. (g) There can be no doubt that a tender of a debt due at a certain day, before such day, without tendering also interes...
-Of Performance. Part 6
7 Cush. 391. (k) Wheeler v. Knaggs, 8 Ohio, 169, 372; Behaly v. Hatch, Walker (Miss.), 369; Breed v. Hurd, 6 Pick. 356. The tender must be unconditional; so, at least, it is sometimes sa...
-Of Performance. Part 7
It has been said in England, that by a tender is meant, not merely that the debtor was once ready and willing to pay, but that he has always been so and still is; and that the effect of it will theref...
-2. Of the Tender of Chattels
The thing to be tendered may not be money, but some specific article; and the law in relation to the delivery of these under a contract, has been much discussed, and is not perhaps yet quite settled. ...
-Of the Tender of Chattels. Part 2
When a tender is pleaded with a profert, the defendant should have the article with him in court. But this would be sometimes inconvenient, in the case of very bulky articles, and sometimes impossible...
-Of the Tender of Chattels. Part 3
States and the promisee within. (l) If no expression used by the parties, and nothing in the nature of the goods or the circumstances of the case, controls the presumption, then the place where the pr...
-Of the Tender of Chattels. Part 4
Whenever chattels are deliverable by contract on a demand, this demand must be reasonable; that is, reasonable in time, and place, and manner. (r) And the conduct of the promisor will always receive a...
-Of the Tender of Chattels. Part 5
go * together. If the contract and its obligation are discharged by the tender, the property in the chattels passes by the tender; and on the other hand, if the property passes by the tender, the cont...
-Of the Tender of Chattels. Part 6
(x) Dennett v. Short, 7 Greenl. 150. (y) Thus when a statute required all leather offered for sale to be stamped G. or B., a tender of unstamped leather is not sufficient. Elkins v. Parkhurst, 17 V...
-Of the Tender of Chattels. Part 7
(e) Chippendale v. Thurston, 4 C. & P. 98. (f) Stevens v. Webb, 7 C. ft P. 60. (g) Thus, where A agreed to deliver to B by the first of May, from 700 to 1,000 barrels of meal, for which B agreed...
-Of the Tender of Chattels. Part 8
brought for the money, non-performance of the work is of course a good defence; but if there is a part performance, and this is a performance of the whole substance of the contract, and an omission on...
-5. OF THE TIME OF PERFORMANCE
If the contract specifies no time, the law implies that it shall be performed within a reasonable time; (m) and will not permit * this implication to be rebutted by extrinsic testimony going to fix a ...
-Of THE TIME OF PERFORMANCE. Part 2
Whether in computing time, the day when the contract is made shall be included or excluded, has been much disputed. It has been thought that this might be made to depend on the very words, as that in...
-Of THE TIME OF PERFORMANCE. Part 3
1 In computing time from the date, or from the day of the date, or from a certain act or event, the day of the date is to be excluded, unless a different intention is manifested by the instrument or s...
-Of THE TIME OF PERFORMANCE. Part 4
If an indenture of lease bear date which is void or impossible, as the 30th of February, etc., if in this case the term be limited to begin from the date, it shall begin from the delivery, as if ther...
-Of THE TIME OF PERFORMANCE. Part 5
(z) Brown v. Johnson, 10 M. & W. 831; King v. Dowdall, 2 Sandf. 181. (a) Short v. Stone, 8 Q. B. 858. (b) Lovelock v. Franklyn, 8 Q. B. 371; Ford v. Tiley, 6 B. & C. 325; Bowdell v. Parsons, 10 ...
-Of THE TIME OF PERFORMANCE. Part 6
(d) Hodsden v. Harridge, 2 Wms. 8aund. 62 a, n. (4); Child v. Horden, 2 Bulstr. 144. In Quarles v.George, 23 Pick. 400, by a contract between the plaintiff springs from the nature of the contract, tho...
-Of THE TIME OF PERFORMANCE. Part 7
1 Upon a covenant by the lessor to keep in repair the main walls, main timbers, and roofs of the demised premises, the lessor cannot be sued for non-repair, unless he has received notice of want of re...
-Of THE TIME OF PERFORMANCE. Part 8
(g) Williams v. Lloyd, W. Jones, 179; s. c. nom. Williams v. Hide, Palmer, 548. In this case the declaration stated, that the plaintiff delivered a horse to the defendant, which the defendant promised...
-Of THE TIME OF PERFORMANCE. Part 9
(i) White v. Mann, 26 Me. 361; Chapman v. Dalton, Plowden, 284; Holtham v. Ryland, 1 Eq. Cas. Abr. 18. 1 A party who has entered into a contract to make and deliver a certain manufactured article w...
-8. Of Illegality of the Contract
That the illegality of a contract is in general a perfect defence, must be too obvious to need illustration. It may, indeed, * be regarded as an impossibility by act of law; and it is put on the same ...
-Section III. Of Defences Resting Upon The Acts Of Omissions Of The Plaintiff
It is a good defence to an action on a contract, that the obligation to perform the act required, was dependent upon some other thing which the other party was to do, and has failed to do. And if, bef...
-Of Defences Resting Upon The Acts Of Omissions Of The Plaintiff. Part 2
1 Where a defendant has received a substantial portion of the consideration, it is no longer competent to him to rely upon the non-performance of that which might have been originally a condition pre...
-Of Defences Resting Upon The Acts Of Omissions Of The Plaintiff. Part 3
(s) Hodgson v. Davies, 2 Camp. 530; Okell v. Smith, 1 Starkie, 107; Prosser v. Hooper, 1 J. B. Moore, 106. (t) Kingsley v. Wallis, 14 Me. 67; Holbrook v. Burt, 22 Pick. 646. One party may have a...
-Of Defences Resting Upon The Acts Of Omissions Of The Plaintiff. Part 4
(y) But this is not always the case. Thus, in Weaver v. Sessions, v Taunt 154, the plaintiff covenanted to furnish the defendant all the malt he should want for a certain specified period, which shoul...
-Of Defences Resting Upon The Acts Of Omissions Of The Plaintiff. Part 5
232; Montgomery Co. v American Emigrant Co. 47 la. 91; Armstrong. etc. Co. v. Kosure, 66 Ind. 545. A buyer must return the thing sold, unless it is entirely worthless. Babcock v. Case, 61 Penn. St. ...
-2. Of Contributory Negligence
We have referred in many parts of this work, to a liability for negligence, whether this be put on the ground of contract or of tort. A defence very frequently made, is that of contributory negligence...
-Section IV. Accord And Satisfaction
Another sufficient defence is accord and satisfaction; which is substantially another agreement between the parties in satisfaction and in some under Insurance, this question of contributory negligenc...
-Accord And Satisfaction. Part 2
1 See Pettis v. Ray, 12 R. I. 344. 2 See Simmons v. Clark, 56 Ill. 96. (g) Com. Dig. Accord (b. 4); Good v. Cheeseman, 2 B. & Ad. 328, per Parke, J.; Cartwright v. Cooke, 3 B. & Ad. 701; Evans v...
-Accord And Satisfaction. Part 3
(p) Thus in Vedder v. Vedder, 1 Denio, 257, A and B having mutual causes of action in tort against each other, had an interview to adjust the demands of B; and for the satisfaction of such demands, A ...
-Accord And Satisfaction. Part 4
It is held that a creditor who agrees to receive a less sum in full satisfaction for a greater debt, and who receives this sum and gives a receipt in full, may yet sue for the balance of his debt. (ww...
-Section V. Of Arbitrament And Award
Somewhat analogous to the defence of accord and satisfaction, is that of arbitrament and award. By the first the parties have agreed as to what shall be done by one to satisfy the claim of the other. ...
-Of Arbitrament And Award. Part 2
(k) Bird v. Bird, 1 Salk. 74. But see Wood v. Adcock, 7 Exch. 468, 9 Eng. L. & Eq. 624, that the onus of showing that a If the award embrace matters not included in the submission it is fatal. (l)1...
-Of Arbitrament And Award. Part 3
(p) Browne v. Meverell, Dyer, 216 6; Cockson v Ogle, 1 Lutw. 560; Freeman v. Baspoule, 2 Brownl. & G. 809; Bean v. Newbury, 1 Lev. 139; Winter v. Munton, 2 J. B. Moore, 729; Richards v. Drinker, 1 Hal...
-Of Arbitrament And Award. Part 4
In the next place, the award must be possible;(x) for an award requiring that to be done which cannot be done, is senseless and useless. But the impossibility which vitiates an award is one which belo...
-Of Arbitrament And Award. Part 5
(h) Weed v. Ellis, 8 Caines, 255; Gordon v. Tucker, 6 Greenl. 247; Gaylord v. ing no certain means of payment, the award under the circumstances of the case was decided to be binding on the city, a...
-Of Arbitrament And Award. Part 6
(l) Blanchard v. Lilley, 9 East, 497; Philips v. Knightley, 1 Barnard. 468; Linsey v. Ashton, Godb. 255; Ingram v. Webb, 1 Rolle, 362. Or that plaintiff should enter a retraxit. 1 Roll. Abr. tit. Arb....
-Of Arbitrament And Award. Part 7
There are certain words and phrases often used in awards, which seem to have acquired from practice a legal signification. Thus, costs will mean only the legal costs of court; and even charges and ...
-Of Arbitrament And Award. Part 8
An award is so far like a judgment that an attorney has been held to have a lien upon it for his fees; but it is not the same thing in all respects. (d) 1 It may happen, where an award is offered i...
-Of Arbitrament And Award. Part 9
366; Richardson v. Nourse, 3 B. & Ald. 237; Delver v. Barnes, 1 Taunt 48; Cramp v. Symons, 1 Bing. 104; Anonymous, 1 Chitty, 674; Pulliam v. Pensonneau, 33 111. 376. (g) Blagrave v. Bristol ...
-Of Arbitrament And Award. Part 10
Other grounds of objection to an award, are irregularity of proceedings.1 Thus, a want of notice to the parties furnishes a ground of objection to the award. (k) And for this purpose the judgment of t...
-Of Arbitrament And Award. Part 11
(l) Elmendorf v. Harris, 23 Wend. 628; Peters v. Newkirk, 6 Cowen, 108. (m) Miller v. Kennedy, 3 Rand. 2. Notice to sureties on the submission bond is not necessary. Farmer v. Stewart, 2 N. H. 97. ...
-2. Of An Agreement To Submit Questions To Arbitration
Both in this country and in England, it has long been considered, that the parties to a contract are not bound by an agreement, whether in or out of the contract, to refer questions under the same to ...
-3. Of the Revocation OF A Submission to Arbitrators
It is an ancient and well-established rule, that either party may revoke his submission at any time before the award is made; and by this revocation render the submission wholly ineffectual, and of co...
-Section VI. Of A Release
A release is a good defence; whether it be made by the creditor himself, or result from the operation of law. (s) No special form of words is necessary, if it declare with entire distinctness the purp...
-Of A Release. Continued
(a) In Rich v. Lord, 18 Pick. 825, Shaw, C. J., said: It is now a general rule in construing releases, especially where the same instrument is to be executed by various persons, standing in various r...
-Section VII. Of Alteration
An alteration of a contract is said to operate a discharge of it. If the alteration be by a stranger, and is material, and the original words cannot be certainly restored, it avoids the instrument, on...
-Of Alteration. Part 2
Irish courts. Swiney v. Barry, 1 Jones, 100, where it was held, that an alteration in a material part of a deed by a stranger does not avoid the deed; and the court will look at the deed as it was bef...
-Of Alteration. Part 3
(s) Hill 17. Calvin, 4 How. (Miss.) 231; Bowers v. Jewell, 2 N. H. 543; Martendale v. Follet, 1 N. H. 95, where the insertion of the word young in a note for merchantable neat stock was held materia...
-Of Alteration. Part 4
* If there are blanks left in a deed, affecting its meaning and operation in a material way, and they are filled up after execution, * there should be a re-execution, and a new ac knowledgment. (z) 2 ...
-Of Alteration. Part 5
(aa) Alexander v. Hickox, 34 Miss. 496. (b) Davidson v. Cooper, 11 M. & W. 800; Withers v. Atkinson, 1 Watte, 236; Chessman v. Whittemore, 23 Pick. 231; Waring v. Smyth, 2 Barb. Ch. 119. sory no...
-Section VIII. On The Pendency Of Another Suit
Any one who has a claim against another is at liberty to prosecute his claim at law; and the whole system of legal procedure exists for the purpose of making effectual his endeavors to recover the deb...
-Section IX. Of Former Judgment
The whole purpose of the law being to settle questions and terminate disputes, it will not permit a question which has been settled to be tried again. (n) But it must be the meaning of this rule - for...
-Of Former Judgment. Part 2
(p) This question was examined by Parker, C. J., with his accustomed ability, in King v. Chase, 15 N. H. 9. It was there held, that by the matter in issue is to be understood that matter upon which ...
-Of Former Judgment. Part 3
Court of the United States (one justice dissenting) has held that whatever is fairly within the scope of the pleadings in a suit is concluded by the judgment. (rr) Again, if in trover, the question tu...
-Section X. Of Set-Off
Where two parties owe each other debts, connected in their origin or by a subsequent agreement, the balance only is the debt, and he to whom it is due should sue only for that; and if he sue for more,...
-Of Set-Off. Part 2
Dennie v. Elliott, 2 H. Bl. 587; Schermerhorn v. Schermerhorn, 3 Caines, 190; Brewerton v. Harris, 1 Johns. 145; Turner v. Satterlee, 7 Cowen, 481; Story v. Patten, 8 Wend. 331; Graves v. Woodbury, 4 ...
-Of Set-Off. Part 3
1 A demand against the obligee of a bond obtained by the obligor after notice of an assignment by the obligee, is not a matter of set-off against the assignee. George v. Tate, 102 U. S. 564. A debt...
-Of Set-Off. Part 4
(y) Burrough v. Moss, 10 B. & C. 558; Wood v. Ackers, 2 Esp. 594. (z) The decisions are uniform that a joint debt cannot be set off against a separate debt, nor vice vena. Woods v. Carlisle, 6 N. H...
-Of Set-Off. Part 5
Set-off should, however, be discriminated from reduction and recoupment; to both of which it bears much analogy, and with either of which it may be so mingled by the facts of a case as to make it diff...
-Of Set-Off. Part 6
In some of our States a counter-claim may be pleaded in defence or diminution of the plaintiffs claim. This is much the same as set-off; but it may be considered as a more extensive right, or, at leas...
-Of Set-Off. Part 7
(l) Carr v. Hinchliff, 4 B. & C. 547; Stracey v. Deey, 7T.R 361, note; Pur* 1 A debt is not the subject of a set-off that was contracted by the plaintiff during infancy, and not ratified by him in ...
-Of Set-Off. Part 8
When an action is brought by or against a trustee, in that capacity, money due to or from the cestui que trust, may be set off; for it will be considered that the party in interest, and not merely the...
-Section XI. Of Illegal Contracts
We have already spoken of illegal contracts, in connection with other subjects, and especially of an illegal consideration, in our first volume, and in a preceding section of this chapter. We would ad...
-1. Of Contracts in Restraint of Trade
It is not only a defence to a contract that it requires of the defendant, or that the defendant by it promised to do an act which the law forbade his doing, but it may also be a defence, it is unlawfu...
-Of Contracts in Restraint of Trade. Part 2
1 See also Mouflet v. Cole, L. H. 7 Ex. 70; 8 Ex. 82; Boutelle v. Smith, 116 Mass. Ill; Morris Run Coal Co. v. Barclav Coal Co. 68 Penn. St. 173; Perkins v. Clay, 64 N. H. 518; Craft v. McConoughy, 79...
-Of Contracts in Restraint of Trade. Part 3
In the application of this rule we shall see a gradual enlargement, until, in this country at least, it seemed to be a little more than nominal. The cases are quite numerous, but we believe that the f...
-Of Contracts in Restraint of Trade. Part 4
(b) Steams v. Barrett, 1 Pick. 443. And see Thomas v. Miles, 3 Ohio State, 274; Dean v. Emerson, 102 Mass. 480. It has recently been held in England, that an agreement by eighteen mill-owners, to b...
-2. OF Contracts opposed to the Laws of other Countries
A contract which violates or proposes to violate the revenue laws of the country in which it is made, is of course void. (f) But it seems to be quite settled, both in England and in this country, that...
-3. Of Contracts which tend to Corrupt Legislation
All those whose interests are to be affected by legislation, may, both morally and legally, for the protection or advancement of their interests, use all means of persuasion which do not come too near...
-4. OF Wagering Contracts
It was formerly held in England, that some wagers are valid contracts at common law. (j)1 But they have been recently (j) Good v. Elliott, 8 T. R. 693. The wager here was, whether one S. T. had, or...
-Of Wagering Contracts. Part 2
(l) Such wagers were always void at common law. De Costa v. Jones, Cowp. 729, a wager as to the sex of a third person; Phillips v. Ives, 1 Rawle, 37, a wager that Napoleon Bonaparte would be removed f...
-Of Wagering Contracts. Part 3
(q) In Massachusetts, Maine, and Michigan, the words of the statute are, that no person shall do any manner of labor, business, or work, except only works of necessity and charity, on the Lord's day....
-Of Wagering Contracts. Part 4
(r) In Flagg v. Millburv, 4 Cush. 243, it was held to be a work of necessity and charity to repair a defect in a highway, which endangers the public safety. And Wilde, J., said: By the word 'necessit...
-Of Wagering Contracts. Part 5
A deed made on Sunday is void; but as it takes effect from delivery, although it be signed and acknowledged on Sunday, if delivered on Monday, it has been held good. (wx)2 One procuring an indorsement...
-Of Wagering Contracts. Part 6
(z) In Nason v. Dinsmore, 34 Me. 391, it was held, that a contract proved to have been made on the Lord's day, is not thereby rendered invalid, unless it be also proved that it was made before sunset....
-Of Wagering Contracts. Part 7
1 The buyer of goods sold on Sunday, who has asserted and maintained his title against the seller for a trespass on the goods, is not estopped to set up the defence of sabbatical illegality in an acti...
-6. OF Maintenance and Champerty
Maintenance and champerty are offences at common law; and contracts resting upon them are void. But those offences, if not less common in fact, as it may be hoped that they are, are certainly less fre...
-Section XII. Of Fraud
We have had repeated occasion to remark, that fraud avoids every contract, and annuls every transaction; and to illustrate this principle in its relation to many of the kinds of contracts which we hav...
-Of Fraud. Part 2
In the first place, it is obvious that the fraud must be material to the contract or transaction, which is to be avoided because of it; for if it relate to another matter, or to this only in a trivial...
-Of Fraud. Part 3
No payment or advance made under a contract which was intentionally fraudulent can give validity to it; and if any part of the original purpose, or of the remaining purpose, is fraudulent, the whole c...
-Of Fraud. Part 4
(w) See Earl of Bristol v. Wilsmore, 1 B. & C. 514; Ash v. Putnam, 1 Hill, 302; Ferguson v. Carrington, 9 B. & C. 59. And see Load v. Green, 15 M. & W. 216. (x) Randall v. Howard, 2 Black. 585. ...
-Of Fraud. Part 5
Baker, 5 B. & Ad. 797 ; Hart v. Talmadge, 2 Day, 381. Young v. Hall, 4 Ga. 95, is a strong case to show that the defendant need not intend to derive any benefit from his fraud in order to render him l...
-Of Fraud. Part 6
(i) See ante, p. * 770, note (p). In general, concealment is not in law so great an offence as misrepresentation,(k) whatever it may be morally. It is cer(j) Laidlaw v. Organ, 2 Wheat. 195, holds t...
-Of Fraud. Part 7
(n) Where a person, having land for sale, gave an authority in writing to sell it upon certain terms, containing the following clause: I will guaranty that there is 45,000,000 feet, board measure, of...
-Of Fraud. Part 8
(r) Crocker v. Lewis, 3 Sumner, 8. In this case it was held, that a representation made by A to B, and communicated by B to C, who, relying thereupon, contracts with A, by which he is defrauded, shall...
-Of Fraud. Part 9
1 A purchaser of counterfeit bonds of the United States, in whose possession they are, need not return such bonds before bringing an action to recover back the money paid by him for them. Brewster v. ...
-Of Fraud. Part 10
(a) See Veazie v. Williams, 3 Story, 612. But see Attwood v. Small, 6 Clark & F. 234; Irvine v. Kirkpatrick, House of Lords, 3 Eng. L. & Eq. 17. (b) Jones v. Yates, 9 B. & C. 532, per Lord Tenterde...
-Of Fraud. Part 11
(e) Hatch v. Barley, 12 Cash. 27. (ee) Lyman v. Cessford, 15 Iowa, 229. (f) It is frequently said, that courts of equity can act more upon presumptive evidence of fraud than courts of law, but t...
-Section I. - Of Estoppels In General
Coke defines Estoppel, as existing, when a man's owne act or acceptance, stoppith or closeth up his mouth to alleage or plead the truth. (a) This definition is accepted by Comyn. (b) But while it se...
-Section II. Estoppel By Record
The general rule on this point is, that no man shall be permitted to make any averment which contradicts the record of that wherein be was a party. It is as ancient as the Year-Books. (d) But while it...
-Section III. Of Estoppel By Deed
This is at present more frequently resorted to in practice than the former mode of estoppel; but it does not seem to demand, in a work like the present, a full exposition. The general rule may be thus...
-Section IV. Of Estoppel In Pais
An estoppel in pais, or an estoppel in fact, is one which does not spring from a record, or from a deed; but is made to appear to the jury by competent evidence. While the former modes of estoppel hav...
-Of Estoppel In Pais. Part 2
Welland Canal v. Hathaway, 8 Wend. 480; Dezell v. Odell, 3 Hill, 215, and see note (r), infra. The party introducing matter of estoppel must have acted on the faith of the representation or conduct co...
-Of Estoppel In Pais. Part 3
It may also be laid down as a very general rule, that where proceedings between parties, even of a public nature, written document by a party is legal evidence against him, not to supply the absence o...
-Of Estoppel In Pais. Part 4
11 A. & E. 307. And estoppel expires with the term. Bayley v. Bradley, 5 C. B. 396; Ryerss v. Farwell, 9 Barb. 615; Horner v. Leeds, 1 Dutcher, 106; Knowles v. Maynard, 13 Met. 352; Pierce v. Brown, 2...
-Of Estoppel In Pais. Part 5
(t) Thus, a party was barred by saving his name was John, when interrogated before a process issued against him in that name. Price v. Harwood, 3 Camp. 108. In an action for re-entry in default of a d...
-Of Estoppel In Pais. Part 6
1 Where a married woman made a conveyance of land by a false statement that she was single, a note for the price was cancelled as without consideration, notwithstanding her claim that the payee had ob...
-Of Estoppel In Pais. Part 7
2 Where a check has been certified by a bank, and afterwards fraudulently altered, the bank is not estopped to deny the genuineness of the check by a subsequent statement of its teller that the certif...
-Part II. The Law Of Contracts Considered. IV. Reference To Tab Operation Of Law Upon Them. (Continued.). Chapter V. Statute Of Frauds
The Statute of Frauds and Perjuries, passed in the twenty-ninth year of Charles the Second, was intended as an effectual prevention of all the more common frauds practised in society. But a great dive...
-Statute Of Frauds. Part 2
(d) Hawkins v. Holmes, 1 P. Wms. 770; Selby v. Selby, 3 Meriv. 2; Hubert v. Moreau, 12 J. B. Moore, 216; Anderson v. Harold, 10 Ohio, 399; Hubert i?. Turner, 4 Scott, N. R. 486; Bailey v. Ogden, 3 Joh...
-Statute Of Frauds. Part 3
the buyer a the foot of the entry was held to be a signature by both parties, (g) And a recorded vote of a corporation, founded on a written proposition to them, and in accordance with it, is sufficie...
-Statute Of Frauds. Part 4
1 In a few States it is required that the memorandum of a sale of land shall be signed by the vendor to give it validity against either party. Rutenberg v. Main, 47 Cal. 213, Gartrell v. Stafford, 12 ...
-Statute Of Frauds. Part 5
(p) Maclean r. Dunn, 4 Bing. 722. (q) Thus in Hubert v. Turner, 4 Scott, N. R. 486, an agreement was drawn by the defendants' agent which recited in the usual way the names of the contracting parti...
-Statute Of Frauds. Part 6
1 A broker acting for the plaintiff made a contract for the sale of goods to the defendant, sending a note to each party, but signing only that sent to the seller; he. however, entered the contract in...
-Statute Of Frauds. Part 7
C. J, said: How can that be said to be a contract, or memorandum of a contract, which does not state who are the contracting parties? By this note it does not at all appear to whom the goods were sol...
-Statute Of Frauds. Part 8
Bush, 463; Bacon v. Eccles, 43 Wis. 227; Jervis v. Berridge, L. R. 8 Ch. App. 351; see Riley v. Farnsworth, 116 Mass. 223; as the agreed price, Williams v. Morris, 95 U. S. 444; McElroy v. Buck, 35 Mi...
-Statute Of Frauds. Part 9
(bb) Howard v. Holbroke, 9 Boew. 237. Besides the last named States it is held in others without the aid of statute that the consideration need not be expressed. Ringgold v. Newkirk, 3 Ark 96; Nich...
-Statute Of Frauds. Part 10
So in Thayer v. Rock, 13 Wend. 53, it was held, that a contract made as well for the sale of real as of personal property, which is entire, founded upon one and the same consideration, and is not redu...
-Statute Of Frauds. Part 11
From the very definition of a collateral promise, it follows that there must be some one who owes the debt directly. There must exist an original liability, as the foundation for the collateral liabil...
-Statute Of Frauds. Part 12
(o) Watkins v. Perkins, 1 Ld. Raym. 224. If, said he, A promise B, being a surgeon, that if B cure D of a wound, he will see him paid; this is only a promise to pay if D does not, and therefore it ...
-Statute Of Frauds. Part 13
But the contrary view has also found considerable support. Godden v. Pierson, 42 Ala. 370; Brand v. Whelan, 18 111. App. 186; May .v Williams, 61 Miss. 125; Bissig 9. Britton, 59 Mo. 204; Draughan v. ...
-Statute Of Frauds. Part 14
(s) Thus, where, A being insolvent, a verbal agreement was entered into between several of his creditors and B, whereby B agreed to pay the creditors 10s. in the pound in satisfaction of their debts, ...
-Statute Of Frauds. Part 15
(w) Antonio v. Clissey, 3 Rich. 201; Blunt v. Boyd, 3 Barb. 209; Barker v. Bucklin. 2 Denio, 45; Tuttle v. Arm-stead, 53 Conn. 175; Neiswanger v. Mc-Clellan, 45 Kan. 99; Mitts v. McMorran, 85 Mich. 94...
-Statute Of Frauds. Part 16
It has been made a question whether the words debt, default, or miscarriage, extend to a liability for a mere tort But it is now well settled that they do.(e) *The third clause in this section, w...
-Statute Of Frauds. Part 17
(h) See ante, vol. ii. p. * 71. (i) See ante, vol. ii. p. * 63. (j) Wood p. Savage, Walk. Ch. 471. Bat see ante, vol. ii. p. * 71, n. (v). (k) Mountacue v. Maxwell, 1 Stra. 236; De Beil v. Th...
-Statute Of Frauds. Part 18
(s) See preceding note. (t) Thayer v. Rock, 13 Wend. 53; Mayfield v. Wadsley. 3 B. & C. 357; Earl of Falmouth v. Thomas, 1 Cromp. & M. 89; Michelen v. Wallace, 7 A. & E 49; Vaughan v. Hancock, 3...
-Statute Of Frauds. Part 19
2 A contract to cut trees standing upon the contractor's land into cord-wood, and to deliver the wood at so much per cord, is not a contract for the sale of an interest in lands within the statute. Ki...
-Statute Of Frauds. Part 20
(id) Cocking v. Ward, 1 C. B. 858; Kelly v. Webster, 12 id. 283; Towsley v. Moore, 30 Ohio St. 184. (e) Ham v. Goodrich, 37 N. H. 185; see also Segars v. Segars, 71 Me. 530. (ee) Nutting v. Dick...
-Statute Of Frauds. Part 21
1 Where no time is specified, and the contract may be performed within a year, it is not within the statute. McPherson v. Cox, 96 U. S. 404; Van Woert v. Albany, Ac. R. Co., 67 N. Y. 538; Marley v. No...
-Statute Of Frauds. Part 22
* The same observation may be made in respect to the clause of which we are now treating, that we have already had occasion * to make of other clauses in the fourth section, namely, that when a contra...
-Statute Of Frauds. Part 23
(k) See ante, vol. i. pp. * 526, 527. (l) See ante, vol. i. pp. * 527, delivery, and cannot reclaim the goods, the buyer has his option to keep the goods and pay for them, or return them an...
-Statute Of Frauds. Part 24
1 Brown v. Wade, 42 la. 647, held, that the pointing out by the vendor of certain cattle running with others as his, and naming the price, which the vendee agreed to take at the price, is a sufficient...
-Statute Of Frauds. Part 25
(b) Percival v. Blake, 2 C. & P. 514; Kent v. Huskinson, 3 B & P. 233; Phillips v. Bistolli, 2 B. & C. 511; Bacon v. Eccles, 43 Wis. 227. 1 Thus the cutting down and the sale by a purchaser of t...
-Statute Of Frauds. Part 26
1 The recent cases of Kibble v. Gough, 38 L. T. n. s. 204, and Page v. Morgan, 15 Q. B. D. 228, following dicta in Morton v. Tibbett, cited in note (d), supra, have very much narrowed the meaning of t...
-Statute Of Frauds. Part 27
(f) Hart v. Sattley, 3 Camp. 528. This was an action to recover the price of a hogshead of gin. The plaintiffs were spirit merchants in London, who had been in the habit of supplying spirits to the de...
-Statute Of Frauds. Part 28
* It has been much doubted, whether a contract for the sale of stock or shares in a corporation or joint-stock company, was * within the statute. The question is, Are they goods, wares, or merchandis...
-Statute Of Frauds. Part 29
(k) See preceding note. (l) In Baldwin v. Williams, 3 Met. 365, it was decided, that a contract for the sale of promissory notes is within the statute. But see contra, Whittemore v. Gibbs, 4 Foster, 4...
-Statute Of Frauds. Part 30
1 Part payment must be made at the time the contract is entered into; agreement to pay and subsequent payment axe not enough. Paine v. Fulton, 34 Wis. 83.- K. There have been, since that time, many...
-Statute Of Frauds. Part 31
Crookshank v. Barrel], 18 Johns. 58; Se-wall v. Fitch, 8 Cowen, 214. And such the Superior Court of the City of New York has recently declared to be still the law of New York. Robertson v. Vaughn, 5 S...
-Statute Of Frauds. Part 32
1 The statute of frauds affects the remedy only and not the validity of the contract, and if there is a completed oral contract of sale of goods, the acceptance and receipt of part of the goods by the...
-Statute Of Frauds. Part 33
If it appears affirmatively on the face of a pleading setting up such a contract thai the agreement was oral* the pleading is demurrable. White v. Levy, 9 Southern Rep. 164 (Ala. 1891); Underhill v. A...
-Chapter VI. The Statute Of Limitations. Section I. - The General Purpose Of The Statute
Any tribunal which inquires into the validity of a claim, must admit that its age is among the elements which determine the probability of its having a legal existence and obligation. The natural cour...
-The General Purpose Of The Statute. Part 2
A very little observation will show that these two views lead to results, which are not only distinctly different, but antagonistic: This difference may be stated theoretically thus: If the statute of...
-The General Purpose Of The Statute. Part 3
(g) Willett v. Atterton, 1 W. Bl. 35; Perkins v. Burbank, 2 Mass 81. (h) In Spring v Gray, 5 Mason, 523. (i) In Green v. Rivett, 2 Salk. 421. (j ) Thus, in A'Court v. Crow, 3 Bing. 329, defen...
-Section II. Of A New Promise
The law may not be yet entirely settled, as to what shall constitute the new promise which removes the bar of the statute. In England, by the statute 9 Geo. IV. c. 14, it was provided that a new promi...
-Of A New Promise. Part 2
(n) Thus, in Dickinson v. Hatfield, 1 Moody & R. 141, Lord Tenterden ruled that a promise to pay the balance due, is sufficient to take a case out of the statute of limitations, although no mention ...
-Of A New Promise. Part 3
* An admission of a debt unaccompanied by a promise to pay is generally held sufficient to remove the bar of the statute, if nothing is said at the time inconsistent with an intent to pay. See Grimbal...
-Of A New Promise. Part 4
1 Where all the items of an open unliquidated account are on one side, the last item which is alone within the statute of limitations, will not take the whole out of the statute. Phelps v. Hubbard, 59...
-Section III. Of Part Payment
A part payment of a debt has always been held to take it out of the statute; (e)1 the six years being counted from such * payment And this is so, though the payment is made by goods or chattels, which...
-Of Part Payment. Part 2
It * must, however, be certain, that payment is made only as a part of a larger debt; for, in the absence of conclusive testimony, it will not be deemed an admission of any more debt than it pays. (h)...
-Of Part Payment. Part 3
(hh) Smith v. Simms, 9 Ga, 418; Davidson v. Delano, 11 Allen, 523. (i) Mills v. Fowkes, 5 Bing. N. C. 455; Nash v. Hodgson. 6 De G.. M. & G. 474, 31 Eng. L. & Eq. 555. But see Ayer v. Hawkins, 19 V...
-Of Part Payment. Part 4
1 An indorsement, in the handwriting of the debtor, but not signed by him, of a pay-ment of part of a promissory note, will not prevent the operation of the statute, if no money or other valuable cons...
-Section IV. Of New Promises And Part Payments By One Of Several Joint Debtors
There has been some conflict, and some change in the law, as to the effect of the acknowledgment, part payment, or new promise, of one of two or more joint debtors. And it is obvious that this must de...
-Of New Promises And Part Payments By One Of Several Joint Debtors. Part 2
(see Brandram v. Wharton, 1 B. & ALd. 463; Atkins v. Tredgold, 2 B. & C. 23}, has maintained its ground in England, and is now regarded there as sound law. See Perham c. Raynal, 2 Bing. 306; Burleigh ...
-Of New Promises And Part Payments By One Of Several Joint Debtors. Part 3
But in some instances, where the acknowledgment of one joint debtor is held to be admissible evidence of the promise of the others, the question is still reserved, whether it be sufficient evidence. A...
-Of New Promises And Part Payments By One Of Several Joint Debtors. Part 4
2 A promise or acknowledgment to a person other than the creditor is ineffectual. Fort Scott v. Hickman, 112 U. S. 150, 161; Biddel v. Brizzolana, 64 Cal. 354, Collar Tenterden's act, by implicatio...
-Section V. Of Accounts Between Merchants
The statute of James applies to all actions of account, and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or id. 129; Kyle v...
-Of Accounts Between Merchants. Continued
1 This provision has been repealed in England by Stat. 19 & 20 Vict, c 97, 9, and exists in but few of the United States. In Green v. Disbruw, 79 N. Y. 1, the history of the various statutory p...
-Section VI. When The Period Of Limitation Begins To Run
The next question we propose to consider is, from what point of time the six years are to be counted. The general answer is, from the period when the creditor could have commenced his action; because ...
-When The Period Of Limitation Begins To Run. Continued
The statute begins to run whenever the creditor or plaintiff could bring his action, and not when he knew he could; thus, it is said that if one promises to pay when able, as soon as he is able the st...
-Section VII. Of The Statute Exceptions And Disabilities
The statute of James provides, that if the plaintiff, at the time when the cause of action accrues, is within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the sea...
-Of The Statute Exceptions And Disabilities. Part 2
(x) Demarest v. Winkoop, 3 Johns. Ch. 129; Jackson v. Johnson, 5 Cowen, 74; Butler v. Howe, 13 Me. 397; Dugan v. Gittings, 3 Gill, 138; Scott v. Haddock, 11 Ga. 258. (y) Demarest v. Wynkoop, 3 J...
-Of The Statute Exceptions And Disabilities. Part 3
1 The statute begins to run in favor of a debtor, absent from the State when he becomes liable for a debt, as soon as he returns openly to the State, although his creditor does not know of his return,...
-Section VIII. That The Statute Affects The Remedy Only And Not The Debt
The statute only declares that no action shall be maintained; but not that the cause of action is made void. Hence, although the remedy by action is lost, a lien is not lost If one holds a note agai...
-Chapter VII. Of Interest And Usury. Section I. - Of Interest, And When It Is Recoverable
Originally, the word usury meant any money received for the use of other money. Whether it were more or less, such taking was thought to be unlawful, or, at least, immoral. In modern times, a moder...
-Of Interest And Usury. Section I. - Of Interest, And When It Is Recoverable. Continued
In many of our States the statutes allow parties to a contract to make their own bargain as to the rate of interest to be paid, but provide a legal rate where no special bargain is made. Owing to this...
-Section II. What Constitutes Usury
The statutes of usury in this country have been copied, in substance, but with more or less variation of form, from the 12 Anne, stat 2, c. 16 (now repealed by the statute 17 & 18 Vict. c. 90), which ...
-Section III. Immaterality Of The Form Of The Contract
It is entirely immaterial in what manner or form, or under what pretence, this is done. (z)2 And countless are the devices by (y) It is well settled, that if there be a contract for the payment of ...
-Immaterality Of The Form Of The Contract. Part 2
In this case the defendant applied several times to Harris ft Stratton to obtain the discount of a bill for 200, who had replied that they could not advance money, but only goods. Subsequently the de...
-Immaterality Of The Form Of The Contract. Part 3
(e) Doe d. Metcalfe v. Brown, 1 Holt, N. P. 295; Mastermann v. Cowrie, 3 Camp. 488: Carstairs v Stein, 4 M. & S. 192; Smith v. Brash, 8 Johns. 84; Thomas v. Catheral, 5 Gill & J. 23; Tyson v. Rickard,...
-Immaterality Of The Form Of The Contract. Part 4
If a contract be in part for usurious interest, and it is made by two instruments, one promising to pay the principal, with or * without lawful interest, and the other promising to pay the usurious in...
-Immaterality Of The Form Of The Contract. Part 5
It should be remarked, that if a foreign contract provides for interest which is lawful where the contract is made, it will not be lawful in itself, was held, upon the authority of Roberts v. Trenayne...
-Section IV. The Contract Itself Must Be Tainted With The Usury
In order that a contract or debt should be avoided as usurious, it is necessary that it should itself be tainted with this offence; for if any subsequent contract in payment of the first be usurious, ...
-Section V. Substituted Securities Are Void
If the statute of usury provides that a usurious contract is void, then no subsequent circumstances can make the original contract good; and, consequently, a promissory negotiable note, void at its in...
-Substituted Securities Are Void. Part 2
1 If a usurious contract is abandoned by the parties and the securities given therefor cancelled and destroyed, a subsequent promise by the borrower to pay the sum actually lent is not tainted with th...
-Substituted Securities Are Void. Part 3
(g) Thatcher v. Gammon, 12 Mass. 268; Thompson v. Berry. 3 Johns. Ch. 395, 17 Johns. 436. See also Jackson v. Henry, 10 Johns. 196; Jackson v. Bowen, 7 Cowen, 20; Day v. Cummings, 19 Vt. 496. (h) W...
-Section VI. Distinction Between Invalidity Of The Contract And The Penalty Imposed
The law affects a usurious contract with two consequences, which should be discriminated. One is, the avoidance of the * contract; the other is, the penalty for the breach of the law. Now the penalty ...
-Distinction Between Invalidity Of The Contract And The Penalty Imposed. Part 2
Doug. 235, was an action of debt to recover the penalty for taking usurious interest. One Grinds! had borrowed 100 of the defendant, for which he had given a bond, for' the payment of the principal a...
-Distinction Between Invalidity Of The Contract And The Penalty Imposed. Part 3
* Where the statute makes a usurious contract void, or forfeits a part of the principal or legal interest, by way of penalty, the creditor of course must lose this, for the debtor may interpose this d...
-Section VII. Of Contracts Accidentally Usurious
If a contract is accidentally usurious, that is, made so by some mistake in calculation, or other error in fact, against the intention of the parties, the mistake may be corrected, and the contract sa...
-Section VIII. Of Discount Of Notes And Bills
The practice of discounting bills or notes, by deducting from their face the interest for the whole time they had to run, began with our banks, and was soon so firmly established, that it was sanction...
-Section IX. Of A Charge For Compensation For Service
It is quite certain, that the lender, whether banker or broker, may charge, in addition to the discount, a reasonable sum permitted to discount them; in which cases the interest is always deducted fro...
-Of A Charge For Compensation For Service. Part 2
(c) Auriol v Thomas, 2 T. R. 52; Winch v. Fenn, cited 2 T. R. 62; Caliot v.Walker, 2 Anst. 496; Rooke, J., Ham* mett v. Yes, 1 B & P. 156; Master man v. Cowrie, 3 Camp 488; Ex parte Jones, 17 Yes. 332...
-Of A Charge For Compensation For Service. Part 3
(e) In Harris v. Boston, 2 Camp. 348, the plaintiffs were seed factors, and bought large quantities of rape seed for the defendant, advancing money thereupon, for which they charged the legal interest...
-Section X. Of A Charge For Compensation For Risk Incurred
As the lender may take a compensation for his trouble and services, so he may for the risk that he runs. By this, however, is not meant the personal risk of the debtor's ability to pay; for nothing of...
-Of A Charge For Compensation For Risk Incurred. Part 2
It is the essence of the contract of bottomry and respondentia, that the lender runs the marine risk, to be entitled to the marine interest. The rate of interest, and the manner of securing the paymen...
-Of A Charge For Compensation For Risk Incurred. Part 3
(o) The great case on the vanity of post-obit bonds, is that of Chesterfield v. Janssen, 1 Atk. 301, 2 Ves. Sen. 125, 1 Wilson, 286. The defendant paid Mr. Spencer, testator of the plaintiffs, 5,000,...
-Section XI. Contracts In Which A Lender Becomes Partner
It is often attempted to apply the same principle to the law of partnership, and to protect contracts in which money has been loaned from the imputation of usury, by the defence, that the person advan...
-Section XII. Of Sales Of Notes And Other Ch0ses In Action
It is quite settled that negotiable paper may be sold for less than its face, and the purchaser can recover its whole amount from the maker when it falls due, although he thereby gets much more than l...
-Of Sales Of Notes And Other Ch0ses In Action. Continued
In speaking thus far of the sale of notes, we have had particular reference to those which were transferred by delivery, or by indorsement without recourse. Another question has been raised, however, ...
-Section XIII. Of Compound Interest
Contracts for compound interest are sometimes said to be usurious, but this may not be considered quite certain. We are aware of no case in England or in this country in which a contract to pay compou...
-Of Compound Interest. Continued
(f) Ossulston v. Yarmouth, 2 Salk. 449; Waring v. Cunliffe, 1 Ves. Jr. 99; Connecticut v. Jackson, 1 Johns. Ch. 13; Mowry v. Bishop, 5 Paige, 98; Hastings v. Wiswall, 8 Mass. 455; Ferry v. Ferry, 2 Cu...
-Chapter VIII. Damages. Section I. - Of The General Ground And Measure Of Damages
It has already been remarked, that the common law does not aim at preventing a breach of duty, or compelling the fulfilment of a contract by direct means. This equity does. But, as a general rule, the...
-Section II. Of Liquidated Damages
The law will permit parties to determine, by an agreement which enters into the contract, what shall be the damages which he who violates the contract shall pay to the other; but it does not always sa...
-Of Liquidated Damages. Part 2
One rule, therefore, is this: that the action of the court shall not be defined and determined by the terms which the parties have seen fit to apply to the sum fixed upon. Though they call it a penalt...
-Of Liquidated Damages. Part 3
(f) In Davies v, Penton, 6 B. & C. 216, 224, Littledale, J., said: Before the 8 & 9 Will III. the whole penalty might be recovered at law; and the party against whom it was recovered was driven to s...
-Of Liquidated Damages. Part 4
The second rule is derived from similar considerations. Let us suppose a contract between parties, one of whom, for good consideration, promises to the other to do several things, and then it is agree...
-Of Liquidated Damages. Part 5
* With the exception of these rules of construction, which seem to have grown. out of the peculiar nature of this class taken to have meant that the sum agreed on was to be liquidated damages, and not...
-Of Liquidated Damages. Part 6
1 In order that a sum named in an agreement should be treated as liquidated damages it must be reasonable in amount, so that it might fairly have been intended as compensation. Scofield v. Tompkins, 9...
-Section III. Of Circumstances Which Increase Or Lessen Damages
We have said that the principle of compensation is that which lies at the foundation of the common-law measurement of damages. And this is not the less true, although there are difficulties in the app...
-Of Circumstances Which Increase Or Lessen Damages. Part 2
(k) Counsel fees and other expenses were allowed in Boston Manuf. Co. v. Fiske, 2 Mason, 120; Pierson v. Eagle Screw Co 3 Story, 402; Allen v. Blunt, 2 Woodb. & M. 121. But the authority of these is m...
-Of Circumstances Which Increase Or Lessen Damages. Part 3
(rr) Hyatt v. Adams, 16 Mich. 180. In an action by a husband for seduction of his wife, it was held, that although he failed in proof of loss of service, he could recover for his mental anguish: in Yu...
-Section IV. Of Exemplary And Vindictive Damages
Whether damages may be vindictive or exemplary, in the strict sense of these words, that is, whether in actions ex delicto (to which it is generally admitted that exemplary damages must be confined), ...
-Of Exemplary And Vindictive Damages. Part 2
It is unfortunate that the word vindictive has been used as descriptive of these damages; exemplary is much better. For, on the whole, we are satisfied that the courts of this country generally...
-Of Exemplary And Vindictive Damages. Part 3
(i) In Day v. Woodworth, 13 How. 363, the action was trespass for pulling down a mill-dam. Grier, J., in delivering the opinion of the court, said: it is a well-established principle of the common la...
-Of Exemplary And Vindictive Damages. Part 4
1 But in most jurisdictions the law is otherwise. Burns v. Campbell. 71 Ala. 271; Mendelsohn v. Anaheim Lighter Co. 40 Cal. 657; Grand v. Van Vleck, 69 111. 478; Cleghorn v. New York Central, etc. R. ...
-Of Exemplary And Vindictive Damages. Part 5
(m) Gordon v, Brewster, 7 Wis. 355; Seldeu v. Cushman, 20 Cal. 56; Hyatt v. Adams, 16 Mich. 180. (n) In Berry v. Vreeland, 1 N. J. 183, Green, C. J., in delivering the opinion of the court in an ac...
-Of Exemplary And Vindictive Damages. Part 6
Not unfrequently courts give to a plaintiff who has recovered what seems to be excessive damages, an election between a new trial, or a remission by him of the excess of damages. Generally, at least, ...
-Section V. Of Direct Or Remote Consequences
Damages will not, in general, be given for the consequences of wrong-doing, which are not the natural consequences, because it is only for them that the defendant is held liable. Thus, if he has beate...
-Of Direct Or Remote Consequences. Part 2
(v) Greenland v. Chaplin, 5 Exch. 243. In Righy v. Hewitt, 5 Exch. 240, an action on the case was brought for an injury to the plaintiff, from the negligent driving of the defendant's omnibus. Pollock...
-Of Direct Or Remote Consequences. Part 3
* Both in England and America, it is generally held, that profits are not to be included in the injury for which compensation * is to be made. Yet these would seem to be precisely those consequences w...
-Of Direct Or Remote Consequences. Part 4
1 See as to the rule of damages in Hadley v. Baxendale, supra, that if special circumstances are known to both parties, the damages are those reasonably contemplated under such circumstances; if unkno...
-Of Direct Or Remote Consequences. Part 5
* so far, in effect, as to allow, as damages, the amount of the profits which would probably have arisen from contracts that depended upon the performance of the principal contract. (z) And it is said...
-Of Direct Or Remote Consequences. Part 6
(e) Loosemore p. Radford, 9 M. & W. 657; Robinson v. Robinson, Q. B. 1855, 29 Eng. L. & Eq. 212; Ex parte Negus, 7 Wend. 499; Churchill p. Hunt, 3 Denio, 321; Lethbridge p. Mytton, 2 B. & Ad. 772; ...
-Section VI. Of The Breach Of A Contract That Is Severable Into Parts
It may happen that the injury complained of is the breach of a contract that extends over a considerable space of time, and includes many acts; or it is a tort divisible into many parts. The question ...
-Section VII. Of The Legal Limit To Damages
The law would avoid unnecessary litigation; would make it, where necessary, efficacious and conclusive in its action; and would protect each party against the other, by doing exact justice to both. Th...
-Of The Legal Limit To Damages. Part 2
If the failure of the agent to purchase goods ordered by his principal to be sent on a mercantile adventure, be the ground of the action, it is a question whether the price of the goods when they shou...
-Of The Legal Limit To Damages. Part 3
1 When a plaintiff sues for failure to furnish him employment, proof that he has obtained it from other sources is proper in reduction of damages. Owen v Union Match Co 48 Mich 348. - K. 2 The meas...
-Of The Legal Limit To Damages. Part 4
*3. In the Action of Trover. In the action of trover to which a plaintiff generally resorts for remedy when his personal property has been appropriated by another, the value of the property at the ...
-Of The Legal Limit To Damages. Part 5
(j) Kennedy v Strong, 14 Johns. 128; Hepburn v. Sewell, 5 Harris & J. 211; Kennedy v. Whitwell, 4 Pick. 466, Pierce v. Benjamin, 14 Pick. 356, 361; Parks v. Boston, 15 Pick. 198; Johnson v. Sumner, 1 ...
-Of The Legal Limit To Damages. Part 6
(k) Dunlop p. Higgins, 1 H. L. Cas. 861, 402, per CoUenham, Ld. Ch. 8ee supra, note (f). (l) Dennis p. Barber, 6 & & R. 420; Hargar p. M'Mains, 4 Watts, 418. But see supra, note (t) (m) Says ...
-Of The Legal Limit To Damages. Part 7
(p) In cases where a party has, under a contract with the owner, increased the value of goods by his labor, and then converted them to his own use, the value of the goods, before the labor has been ex...
-Of The Legal Limit To Damages. Part 8
If the plaintiff claims the property converted merely by a lien to secure a debt he recovers only the amount of the debt, because that is the measure of his interest if the defendant have any title or...
-In The Action Of Repleyin
By the action of replevin, the plaintiff, having taken property which he calls his own, seeks to establish his title; and the defendant, denying the plaintiff's title, endeavors to establish his own. ...
-5. Where a. Vendee sues ▲ Vendor
If a vendee, to whom the vendor has not delivered the articles sold agreeably to his contract, brings an action for the breach, he may be said to have sustained no loss unless the articles have risen ...
-Where a. Vendee sues ▲ Vendor. Part 2
(j) Suvdam v. Jenkins, 3 Sandf. 639. (k) This distinction has, in some cases, been overruled, and the value of the property at the time and place of the promised delivery taken as the measure of damag...
-Where a. Vendee sues ▲ Vendor. Part 3
(n) Younger v Givens, 6 Dana, 1. (o) Blydenburgh v. Welsh, 1 Baldw. 331, 340. Per Hopkinsm, J.: It is the price-the market price - of the article, that is to famish the measure of damages. Now wh...
-6. Where a Vendor sues ▲ Vehdeb
If a vendor sues the vendee, he demands, by way of damages, the price the vendee should have paid. Usually this is fixed by the parties; if not, it may be fixed by subsequent facts, as by a bona fide ...
-Where a Vendor sues ▲ Vehdeb. Part 2
In most jurisdictions, however, so general a rule would probably not be laid down. The vendor should not recover the contract price, unless either the title to the property is in the vendee, or the pr...
-Where a Vendor sues ▲ Vehdeb. Part 3
(u) For this distinction, see Sedgwick on Damages, p. 283, citing Stanton p. Small, 3 Sandf. 230; McNaughter v. Cas-sally, 4 McLean, 530. But we think this distinction is without foundation. The circu...
-Where a Vendor sues ▲ Vehdeb. Part 4
(z) Bridge v. Wain, 1 Stark. 504. (zz) Ferris v. Comstock, 3 Conn. 513. 1 On the sale of a cow, warranted free from the foot and month disease, but which had the disease, and the buyer, a farmer...
-8. When Interest is included
There is another element which enters into the damages given for breach of contract, for the purpose of making these damages compensation; and this is interest1 In general, where the (a) Blaadale t...
-9. Remission of Damages
If the damages recovered be in such excess that judgment will not be rendered on the verdict, it has been already said, (aa) that it is not unusual for the plaintiff to have the leave of court to remi...
-Section VIII. Of The Breach Of Contract To Pay Money Or Goods, In The Alternative
If a note or written promise be to pay so much money, but in goods specified, and at a certain rate, and the promise is broken, it is Dot quite settled whether the law will regard this as a promise to...
-Section IX. Of Nominal Damages
As damages are compensation for some actual injury sustained, it might seem that where a wrong was done, but no actual in* dissenting), that the note in this case was payable alone in pig metal, and c...
-Of Nominal Damages. Continued
(g) Thus, the owner of a several fishery recovered nominal damages of the defendant, in an actiou of trespass, for fishing in it, although no fish were taken. Patrick v. Greenway, I Saund. 346, 6. So ...
-Section X. Of Damages In Real Actions
Thus far we have treated only of damages for the breach of personal contracts, or for personal torts. In real actions, strictly speaking, damages were not demanded or given at common law; (k) one writ...
-Of Damages In Real Actions. Part 2
(b) It is well settled that a widow is entitled to dower out of any improvements that may have been made by the heir previous to the assignment. Co. Litt. 32, a; 1 Roper on Husband and Wife, 246, 347;...
-Of Damages In Real Actions. Part 3
But if we suppose a case where land is conveyed with warranty, the grantor and grantee both believing the title to be good, and there is no taint or suspicion of fraud, and the land rises greatly in v...
-Of Damages In Real Actions. Part 4
(p) Staats v. Ten Eyck, 3 Caines, 117; Pitcher v. Livingston, 4 Johns. 13, per Spencer, J.; Bender v. Fromberger, 4 Dall. 442; Martin v Atkinson, 7 Ga. 238. See ante, p. * 223, note (c). But there see...
-Of Damages In Real Actions. Part 5
But, if he does not discharge the incumbrances, and brings his action before ouster or any actual injury springing from them, although the action is sustainable, because the existence of the incumbran...
-Of Damages In Real Actions. Part 6
(y) See authorities cited in the preceding note, and Bitner v. Brough, 11 Pa. 127; Handley v. Chambers, 1 Litt. 358; Blanchard v. Ely, 21 Wend. 346, 347j per Cowen, J.; Nourse v. Barns, 1 T. Raym. 77....
-Of Damages In Real Actions. Part 7
(c) In Franchot v. Leach, 5 Cowen, 506, the jury, under direction of the judge, found the consideration-money and interest as damages for the vendee s breach of his contract, and no objection seems to...
-Chapter IX. On Liens. Section I. - On Lien In General
Lien is a right to hold possession of another's property, for the satisfaction of some charge attached to it. The essence of the right is possession; and whether that possession be of officers of the ...
-On Liens. Section I. - On Lien In General. Part 2
(e) Hunt v. Haskell, 11 Shep. 339. This was an action of trover brought by the owner of twenty-five boxes of clocks, against the captain of a vessel who sold them for freight due thereon. The goods we...
-On Liens. Section I. - On Lien In General. Part 3
(g) Coggs v. Bernard, Ld. Raymond, 909; Rex v. Cording, 1 N. & M. 35. (h) Mores v. Connam, Owen, 123. 1 Potter v. Thompson. 10 R. 1.1, decided that commercial paper pledged as security might be ...
-On Liens. Section I. - On Lien In General. Part 4
(l) Wentworth v. Day, 3 Met 352. This was an action of trover for a watch, and was submitted to the court upon an agreed statement of facts The plaintiff having lost his watch, advertised it in a news...
-On Liens. Section I. - On Lien In General. Part 5
Where the party giving possession of the property has no power to dispose of it, no lien will attach;2 and it has been repeatedly decided, that, at common law, a factor with authority to sell property...
-Section II. Of The Incidents Of Lien
Continuance of possession being indispensable to the existence of liens at law, an abandonment of the custody of the * property over which the right extends, divests the lien. In such a case the holde...
-Of The Incidents Of Lien. Part 2
Taking other security for the debt will discharge a lien upon personal property;l and even the taking of the party's own nego(j) Scarfe 9. Morgan, 4_Mees. & W. 270. (k) Fergusson v. Norman, 5 Bing....
-Of The Incidents Of Lien. Part 3
Where the vendor receives a note for goods, and retains them on storage for the vendee, and subsequently agrees, verbally, at the request of the vendee, to take the goods back and give up the note, he...
-Section III. Of The Several Kinds Of Lien
An innkeeper's lien appears to be one of those arising from the necessity which the law imposes upon certain persons, holding themselves out as public servants in their several callings, to receive an...
-Of The Several Kinds Of Lien. Part 2
(e) Scarfe v. Morgan, 4 Mees. & W. 270; 1 Horn. & Hurl. 292. 1 Caldwell v. Tutt, 10 Lea, 258, decided that a livery-stable keeper did not lose his statutory lien upon a horse for board by permittin...
-Of The Several Kinds Of Lien. Part 3
(h) Bright v. Sneff, 5 B. & Ald. 350; Oppenheim v. Russell, 3 B. & P. 42. See Farrell v. Richmond, etc. R. R. Co. 102 N. C 390. (i) Yorke v. Grenangh, 2 Ld. Raym. 867, per Holt, C. J.; Whitaker on ...
-Of The Several Kinds Of Lien. Part 4
(l Hunt r. Haskell, 11 Shepl. 889; Lecky v. McDermott, 8 S. & B. 500; goods does * not defeat his lien on the remainder for his whole charge, (m) 1 But if there be two contracts to carry, with differe...
-Of The Several Kinds Of Lien. Part 5
(t) Partridge v. Dartm. Col. 5N. H 286. 1 A wheelwright, repairing a wagon brought to him by the husband, who has the use of it, but owned by the wife, has a lien thereon as against the latter for ...
-Of The Several Kinds Of Lien. Part 6
1 A vendor's lien may be abandoned during the performance of a contract by his actual parting with the goods before payment. Johnson v. Farnum, 56 Ga. 144. A sale on credit is a waiver of this lien, u...
-Of The Several Kinds Of Lien. Part 7
1 If a particular remittance of money or goods when made to a factor is accompanied by particular instructions as to how the money or goods shall be applied, the factor if he receives the remittance m...
-Of The Several Kinds Of Lien. Part 8
(s) Taylor v. Robinson, 2 Moore, 730, Bruce v. Wait, 3 Mees. & W. 15 Mur & H. 439; infra, n. (o). (t) Nicholas v. Clent, 3 Price, 547; and see Madden v. Kempster, 1 Camp. 12. (tt) Bruce v. Andre...
-Of The Several Kinds Of Lien. Part 9
Hurl. 339 In this case there was not an appropriation by the owner of a specific cargo already consigned, nor were the bills of lading remitted to the factor prior to the arrival, so that, though the ...
-Of The Several Kinds Of Lien. Part 10
(x) Davis v Browsher, 5 T. R 488; Scott v Franklin. 15 East, 428; Bk. of Metrop v. N. E. Bank. 1 How. 234; 17 Pet. 174 In this case the court say. in reference to the general doctrine of the banker's ...
-Of The Several Kinds Of Lien. Part 11
(b) Snook v Davidson, 2 Camp 2I8. (c) Lanyon v. Blanchard, 2 Camp. 597. And see Richardson 0. Goss, 3 B. & P. 119; Pultney v. Kymer, 3 Esp. 182. (d) Mann v. Forrester. 4 Camp. 60; Westwood v Bel...
-Of The Several Kinds Of Lien. Part 12
(j) Buxton v. Banghan. 6 Cat & P. 674; Scott v. Jester. 8 Eng. (Ark.) 43V; Lowe v. Martin, 18 111. 286. (k) Leuckhart v. Cooper, 2 Hodg 150, 3 Bing. N. C. 99 (l) Buxton v. Banghan, 6 C. & P. 674...
-Of The Several Kinds Of Lien. Part 13
The incapacity of a bankrupt to give a lien, exists as well in reference to bis dealings with an attorney as with other parties; and the latter has no lien upon the papers and proceedings in his custo...
-Section IV. Of Liens By Contract
The class of liens arising by contract, though a very large one, and including transactions for security or indemnity in almost every branch of business, is very well represented by the common occurre...
-Section V. Of Liens By Statute
We come next to consider liens, or rights in the nature of lien, acquired by process of law, and those imposed by statute, for the protection of the claims of the government An attachment on mesne pro...
-Section VI. Of Equitable Liens
There are certain liens which exist only in equity; such as vendor's and vendee's liens in sales of real estate, lien by deposit of deeds, partnership liens, and liens pendente lite. A vendor's lie...
-Of Equitable Liens. Part 2
(dd) Ellett v. Tyler, 41 111. 449. (de) Thorn v. Wilson, 27 Ind. 370. (df) McDole v. Purdy, 23 la. 277. (e) Capper v. Spottiswoode, 1 Tam. 21; Blackburn v. Gregson, 1 Cox, 90; Bond v. Kent, 2...
-Of Equitable Liens. Part 3
(i) Trotter v. Evans, 27 Miss. 772. (j) Fisher v. Johnson, 5 Ind. 492; Nazareth v. Lowe, 1 B. Mon. 257; Warner v. Van Alstine, 3 Paige, Ch. 513. (n) 2 Story, Eq. Jur. 1020; Ex parte Langst...
-Of Equitable Liens. Part 4
(a) 2 Sugd. on Vend. 7 Am. ed. 387; and see Collin son v. Owens, 6 Gill & J. 4; Stansell v. Roberts, 13 Ohio, 148; and McKay v. Green, 6 Johns. Ch. 56, as to advancing money to enable a purchaser to c...
-Of Equitable Liens. Part 5
(f) 2 Vict. c. 11, 7. (g) Carrington v. Brents, 1 McLean, 167. * only a means of publicity, and does not affect the sufficiency of the notice arising from the contents of the bill, to cha...
-Of Equitable Liens. Part 6
In concluding this chapter on lien, we may remark, generally, that there is no difference in the rules of decision as to liens, in equity or in law; and that a court of equity will relieve in a case w...
-Chapter XI. On Remedy In Equity, Or Specific Performance. Section I. - Of The Origin And Purpose Of This Remedy
Courts of law can give no other remedy for breach of contract than damages. The action of detinue is disused, and, under the rules of law, would not be effectual even in the few cases to which it coul...
-Of The Origin And Purpose Of This Remedy. Part 2
* perhaps, hardly any requirement laid down as absolutely necessary for such a decree the want of which may not be supplied; and it may be even more strongly said that no circumstances, and no fact or...
-Of The Origin And Purpose Of This Remedy. Part 3
(i) See 1 Fonbl. Eq. B. 1, ch. 1, 5, note (o). Lord Chief Justice Raymond, in Betesworth v. Dean and Chapter of St. Paul's, Sel. Ch. Ca. 69, said: I take this to be a certain rule of equity, ...
-Of The Origin And Purpose Of This Remedy. Part 4
A one-sided contract, as one by which one party binds himself to buy or to sell, and the other does not bind himself to sell, is not favored in equity; but may be enforced when it is a part of a lease...
-Of The Origin And Purpose Of This Remedy. Part 5
(p) A deed not duly recorded has been regarded as a contract to make a valid conveyance according to its purport. Chase, C. J., Monerieff v. Goldsborough, 4 Harris & Mcll. 283. And see Williams v. May...
-Of The Origin And Purpose Of This Remedy. Part 6
(v) Equity looks upon things agreed to be done as actually performed. Treat, on Eq. b. i. ch. 6, 9. But nothing is looked upon in equity as done, but what ought to nave been done, not what migh...
-Section II. Of Consideration
Equity fully adopts the rule, that no contract shall be enforced which does not rest upon a valuable consideration, but construes and applies it somewhat more rationally and less technically. Thus, eq...
-Of Consideration. Continued
(h) Wheatlev v. Purr, 1 Keen, 551. (i) Fletcher'v. Fletcher, 4 Hare, 67; Sloane v. Cadogan, 3 Sngden on Vendors & Purchasers, App. No. xxvii. (j) Ex parte Pye, 18 Ves. 140; M'Fad-den v. Jenkyns,...
-Section III. Of Contracts Relating To Personalty
There is a distinction taken in equity, in regard to specific performance, which may now be considered as well established, * and perhaps capable of sufficient explanation and defence; but which is, n...
-Of Contracts Relating To Personalty. Part 2
* After all that may be said, the reasons for this distinction retain so much of their force, that the rule founded upon it, with modifications and exceptions introduced in the practice of equity, mus...
-Of Contracts Relating To Personalty. Part 3
2 Where a contract to convey land called for the exercise of personal skill on the part of the purchasers, and also gave them the option to abandon the contract on a contingency, specific performance ...
-Of Contracts Relating To Personalty. Part 4
(l) Adderley v. Dixon, 1 Simons & S. 607. The Vice-Chancellor's decree seems to have proceeded on the ground of the uncertainty of the dividends which might become payable from the estate of the bankr...
-Of Contracts Relating To Personalty. Part 5
We apprehend that the true rule that governs, or should govern these cases, is one which has a much wider application in the law of specific performance. We suppose it may be thus expressed. If the ba...
-Of Contracts Relating To Personalty. Part 6
A contract in relation to land may not be enforceable in equity, for the same reason which prevents most contracts about chattels from enforcement. If an agreement to give to * certain fields a peculi...
-Of Contracts Relating To Personalty. Part 7
(g) Vide ante, p. * 367. (h) Vide ante, p. *368; Pritchard v. Oyey, 1 Jacob & W. 396. (i) Kettleby v. Atwood, 1 Vern. 298, 471; Fothergill v. Fothergill, 1 Eq. Cas. Ab. 222. (j) Perkins v. Wa...
-Of Contracts Relating To Personalty. Part 8
(q) Rolfe v. Rolfe, 15 Sim. 88; Shad-well, V*. C, Kemble v. Kean, 6 Sim. 335; Lord St. Leonards, Ch. 1 De G., M. & G. 631. (r) Rankin v. Huskisson, 4 Sim. 13. See Squire v. Campbell, 1 Mylne & C. 4...
-Section IV. Of Contracts Relating To The Conveyance Of Land
It is in relation to contracts for the sale and conveyance of land (y)1 that the equity relief of specific performance is most freely admitted, most frequently practised, and most distinctly defined. ...
-Of Contracts Relating To The Conveyance Of Land. Part 2
See Sugd. Law of Prop. 74 (in Law Lib. vol. 65), also ante, p. * 364, n. 1. (a) Penn v. Lord Baltimore, 1 Ves. Sen. 444; Lord Cranstown v. Johnston, 3 Ves. 182. Marshall, C. J., Massie v. Watts, 6 ...
-Of Contracts Relating To The Conveyance Of Land. Part 3
In a late case it is intimated, that the adverse opinions of conveyancers and lawyers will not alone suffice to make a title deficient in the view of the court (j) And this must certainly be true to t...
-Of Contracts Relating To The Conveyance Of Land. Part 4
(m) If the vendor was, in the first instance, guilty of an unfair concealment required to take it (oo)l A decree may be granted where there is an incumbrance, as of dower, founded upon a proper deduct...
-Of Contracts Relating To The Conveyance Of Land. Part 5
(p) Time has been held to be of the essence of the contract, upon the construction of the agreement, in Seaton r. Mapp, 2 Coll. 556 (see Drysdale v. Mace, 5 De G., M. & G. 103, 27 Eng. L. & Eq. 195); ...
-Of Contracts Relating To The Conveyance Of Land. Part 6
(t) Although time was not originally of the essence of the contract, yet, after considerable and improper delay on one side, the other party has a right to fix a reasonable time within which the contr...
-Of Contracts Relating To The Conveyance Of Land. Part 7
This remedy in equity is also sought in contracts for a lease, as well as for a sale of land. And equity will, for sufficient reason, direct a lease to be made and dated at a time previous to alleged ...
-Section V. Of The Statute of Frauds
A question has been much agitated, and variously decided in cases where specific performance was sought, of contracts for the transfer of land, and, indeed, of other contracts, as to the' effect in eq...
-Of The Statute of Frauds. Part 2
(cc) Houser v. Lamont, 55 Pa. 311. (d) Townshend v. Stangrooin, 6 Ves. 328; Garrard v. Grinling, 2 Swanst. 244; Clowes v. Higginsou, 1 Ved & B. 524. (e) When parties enter into a written, agreem...
-Of The Statute of Frauds. Part 3
(j) 2 Story, Eq. Jur. 755. This view of Judge Story is criticised by Chancellor Johnson, Winn v Albert. 2 Me. Ch. Dec. 173, 174. (See the opinion of the Court of Appeals in the same case, 5 Md....
-Of The Statute of Frauds. Part 4
3 Sandf. Ch. 279. But see peifer v. Landis, 1 Watts, 392. (v) See Moore v. Small, 19 Pa. 461; Haslet v. Haslet, 6 Watts, 464; Frye v. Shepler, 9 Barr, 91; Woods v. Farmare, 10 Watts. 195; Pugh v. G...
-Of The Statute of Frauds. Part 5
and certainly would be of difficult application, if not in itself unreasonable. And now it seems to be quite well settled, that no mere payment of money will take the case out of the statute, (c) The ...
-Of The Statute of Frauds. Part 6
1 Payment of the purchase-money of land by several years of labor for his father after his majority, followed by actual possession and the making of permanent and valfurther than this, it may do justi...
-Of The Statute of Frauds. Part 7
(m) Woollam v. Hearn, 7 Ves. 219; Winch v. Winchester, 1 Ves. & B. 378; Clarke v. Grant, 14 Ves. 519; Higginson v. Clowes, 15 Ves. 516. (The foregoing are judgments of Sir William Grant ) Rich v. Jack...
-Section VI. Of Compensation
The doctrine of compensation often comes before courts of equity, and the various questions to which it gives rise have been very variously decided. Much uncertainty hangs over many of them at this mo...
-Of Compensation. Continued
(m) Drewe v. Corp, 9 Ves. 368 ; Halsey 9. Grant, 13 Ves 77, 79. Binks v Lord Rokeby, 2 Swanst. 222. An agreement to convey ten lots in not satisfied by a tender of eight lots and the undivided half of...
-Section VII. Of Impossibility And Other Defences
Impossibility of either of three kinds may prevent a decree for specific performance. If the court cannot enforce their own decree, this is a reason for not issuing one. (y) For example, if the (x)...
-Of Impossibility And Other Defences. Part 2
(b) Ante, ch. 8, 2. (c) In the language of Lord Redesdale, to entitle the plaintiff to a specific performance, he must show, that in seeking the performance he does not call upon the other p...
-Of Impossibility And Other Defences. Part 3
An impossibility of performing the contract is to be distinguished from an impossibility of making that use of the consideration which was contemplated at the time the contract was made. For this latt...
-Of Impossibility And Other Defences. Part 4
1 But not if the purchaser, who was to give a mortgage for a part of the purchase-money and is insolvent, offers to pay the whole in cash, as he is not bound to disclose the fact that he is purchasing...
-Of Impossibility And Other Defences. Part 5
Say him a sum of money therefor; and Sir William Grant, M. R., refused a decree for the payment of the money, on the ground that the court had no means of compelling the plaintiff to perform his part ...
-Of Impossibility And Other Defences. Part 6
It sometimes happens that a thing is prayed for which is impossible now, but will be possible at a future time; as if there be an incapacity from age, which time will remove; or from incompleteness of...
-Of Impossibility And Other Defences. Part 7
(d) If a vendor before the sale make a representation calculated to induce the purchaser to overvalue the property, which representation is untrue and known by him to be untrue, he cannot enforce spec...
-Of Impossibility And Other Defences. Part 8
(g) Contracts in writing relating to land may be waived by parol; but this defence is to be received by a court of equity with caution; for the agreement to waive is as much an agreement relating to l...
-Of Impossibility And Other Defences. Part 9
(m) See Wood v. Griffith, 1 Swanst. 54,55. An agreement containing a stipulation inadvertently inserted was not enforced. Watson v. Marston, 4 De G.t M. & G. 230, 31 Eng. L. & Eq. 167. But a court of ...
-Of Impossibility And Other Defences. Part 10
1 On the ground of public policy, specific performance will not be decreed of a contract to Hell bank shares with which to control the bank. Foil's Appeal. 91 Pa. 434. An agreement by a putative fathe...
-Section VIII. Of Trust Mortgages, So Called
Among the contracts which come before courts having equitable jurisdiction, for relief, are those which are familiarly known as trust mortgages, (s) Although this name is commonly given to them both w...
-Chapter XII. On Bankruptcy And Insolvency. Section I. - The General Purpose Of Bankrupt Laws
The common law did not resort to imprisonment as a means of enforcing payment of debts. The process against mere debtors, or defendants charged with injuries without force, beginning with the praecipe...
-The General Purpose Of Bankrupt Laws. Part 2
Ins. Co. 8 id. 268, Brooks v Marbury, 11 id. 78; Pearpoint v. Graham, 4 Wash. C. C. 232; United States v. King, Wallace, 13; Grover v. Wakeman, 11 Wend 187. In England, Estwick v. Caillaud, 5 T. R. 42...
-The General Purpose Of Bankrupt Laws. Part 3
The early bankrupt laws of England proceeded upon an assumption which they maintain to this day: it is, that bankruptcy is a crime, and that he who is guilty of it may properly be proceeded against as...
-Section II. The History Of American Bankrupt Law
The British colonies in this country did not adopt as part of their common law the English laws of bankruptcy and insolvency, but in many instances passed insolvent laws of their own. When they became...
-The History Of American Bankrupt Law. Part 2
(q) Lord Eldon took the first occasion of expressing strong indignation at the frauds committed under cover of the bankrupt laws, and his determination to repress such practices. Upon this subject hi...
-The History Of American Bankrupt Law. Part 3
Thus far, there is nothing to permit a State to * release a debtor from the liability of his subsequently acquired property for his debt And formerly, a great majority of the insolvent laws of the Sta...
-The History Of American Bankrupt Law. Part 4
(v) See supra, the chapter on the Law of Place, Vol. II. pp and * 583. (w) That a State insolvent law may *And further, as a correlative proposition, that no State can, by its municipal law, reach ...
-The History Of American Bankrupt Law. Part 5
(x) In Bradford v. Farrand, 13 Mass 18, a contract had been made in Massachusetts, with a citizen of that State, by a citizen of Pennsylvania, and no express provision was made that it should be perfo...
-The History Of American Bankrupt Law. Part 6
Met. 597. The following authorities, in addition to those above, tend to show that if the contract is made, or is to be performed abroad, such a discharge cannot be held a bar. Farmers and Mechanics B...
-The History Of American Bankrupt Law. Part 7
The difficulty attending these questions is far greater, when complicated with the fact that the courts of the United States exercise in each State a kind of imperium in imperio, so far as citizens of...
-The History Of American Bankrupt Law. Part 8
1 That the national bankrupt law did not nullify, supersede, or wholly suspend the insolvent laws of the several States, and that jurisdiction might be exercised under the latter, at least until the j...
-The History Of American Bankrupt Law. Part 9
(h) Section 224 of the above statute provides, That every deed or memorandum of arrangement now or hereafter entered into between any such trader and his creditors, and signed by, or on behalf of, si...
-Section III. of Bankruptcy Or Insolvency Under Foreign Laws
We would now consider the effect of bankruptcies or insolvencies under the laws of foreign nations, as of France or England, for example; and the effect of bankruptcies or insolvencies under our own l...
-Of Bankruptcy Or Insolvency Under Foreign Laws. Part 2
No extra-territorial effect will be given by courts of foreign jurisdictions to a law dissolving attachments upon the institution of proceedings in insolvency, even as against citizens of the State wh...
-Of Bankruptcy Or Insolvency Under Foreign Laws. Part 3
Wadham v. Marlowe, 1 H. Bl. 437-439, note, s. c 8 East, 314-316, note (a), Philips v. Hunter, 2 H. Bl. 402 Before the time of the American Revolution, the English courts held a different doctrine, ado...
-Of Bankruptcy Or Insolvency Under Foreign Laws. Part 4
1 But see Chipman v. Manufacturers' Nat. Bank, 156 Mass. 147,148. *We should limit this, however, to cases in which the assignee had not previously obtained possession. Our this point wants explana...
-Section IV. Of The Tribunal And Jurisdiction
The Bankrupt Law begins by providing what courts shall have jurisdiction in all matters and proceedings in bankruptcy. This jurisdiction the first section confers upon the district courts of the Unite...
-Section V. Of Voluntary Bankruptcy
The statute provides for voluntary bankruptcy, and also for involuntary bankruptcy. By the eleventh section, any person residing within the jurisdiction of the United States, and owing debts provable...
-Of Voluntary Bankruptcy. Continued
(d) Ex parte Wiggin, Mass. 1 Bank. Reg, 90. The statute also provides that, if three-fourths of the creditors desire it, the estate may be wound up and settled, and distribution made by trustees, (...
-Section VI. Of Involuntary Bankruptcy
The thirty-ninth section determines who may be made a bankrupt against his will1 They are persons who seek to defraud their creditors in the ways pointed out, .or who, being a bank, banker, broker, m...
-Section VII. Of The Assignees
In this country, the assignees are not official persons, but are appointed by the creditors at a regular meeting. (s) V (rs) So held by Lowell, J, in U. S. any money, property, or consideration ...
-Of The Assignees. Part 2
Ex parte De Tasted, 1 Rose, 324; Ex parte Surtees, 12 Ves. 10; Ex parte Townshend, 15 id. 470; Ex parte Shaw, 1 Glyn & J. 127; Shelton v. Walker, 10 Law Reporter, 124. Shaw, C. J., in this last case, ...
-Of The Assignees. Part 3
The provisions of the English bankruptcy acts in respect to assignees are substantially similar to those of our statute; and the decisions of questions arising under them may be useful to us; and part...
-Of The Assignees. Part 4
(v) 1 his seems naturally to follow from their character as trustees. The general doctrine is clear (see the chapter on Trustees, vol. i. of this work), that when the trustee has used trust funds for ...
-Of The Assignees. Part 5
N. P. 159; Parker v. Webb, 3 Salk. 5; Harley v. King, 5 Tyrw. 692; Luxmore r. Rohson, 1 B & Ald. 584; Demarest v. Willard, 8 Couen, 206; Taylor v. Shum, 1 B. & P. 21; Armstrong v. Wheeler, 9 ...
-Of The Assignees. Part 6
(h) The following cases serve, perhaps, sufficiently to illustrate the doctrine of the text, showing the various kinds of actions which assignees have been permitted to bring: Parker v. Manning, 7 T. ...
-Of The Assignees. Part 7
(j) Ex parte Greening, 13 Ves. 206; Watkins v. Manle, 2 Jacob & W. 243; Smith v. Pickering, Peake. N. P. 50; 1 Cooke's B. L. 295 (8th ed); Owen on Bankruptcy, 72, 73; Archbold, 202; Wallace v. Hardacr...
-Section VIII. What Real Property Bankruptcy Transfers To The Assignee
The theory of the bankruptcy system is, that it places in the hands of the assignees all the property and effects of the bankrupt which can be made available for his debts; and renders unnecessary and...
-What Real Property Bankruptcy Transfers To The Assignee. Part 2
(s) See cases in preceding note. If the interests are vested in the bankrupt, the assignee takes them, although they are not in his possession; as, for example, a remainder or reversion. So if it r...
-What Real Property Bankruptcy Transfers To The Assignee. Part 3
(u) See supra, p. * 468, and cases cited. (v) Deacon on Bankruptcy, tit. Copyhold, 354; Taylor v. Wheeler, 2 Vera. 565. See also Ex parte Harvey, Back, 493; Ex parte Holland, 4 Madd 4S3; Doe v. Cla...
-Section IX. What Personal Property Bankruptcy Transfers To The Assignee
Some of the principles already stated, as to real property, apply equally to personal property, (c)l Thus, the assignee takes (c) We collect in this note a few of the more instructive cases, in reg...
-What Personal Property Bankruptcy Transfers To The Assignee. Part 2
1 Insolvency of one of the parties to a contract of sale is not equivalent either to a rescission or a breach. It simply relieves the vendor from his agreement to give credit, and payment may be subs...
-What Personal Property Bankruptcy Transfers To The Assignee. Part 3
It would be within the province of State legislation to determine the rights and interests of either husband or wife, in the property of either. And wherever State statutes give to the wife exclusive ...
-What Personal Property Bankruptcy Transfers To The Assignee. Part 4
(l) Note (z), section 14, of the chapter on Partnership; note (b), p. *468, of the present chapter, that all liens and equities which would avail against the bankrupt will be good against his assignee...
-What Personal Property Bankruptcy Transfers To The Assignee. Part 5
1 Pratt v Curtis, 2 Lowell, 87. But an assignee has no better title than the bankrupt, except in goods conveyed by him in fraud of creditors. Kenney v. Ingalls, 126 Mass. 488; Dugan v. Nichols, 125 Ma...
-What Personal Property Bankruptcy Transfers To The Assignee. Part 6
Bills of lading are so far negotiable instruments, that a transfer and delivery of them in good faith vests in the transferee the property not only in the bills, but in the property, as if by a conwit...
-What Personal Property Bankruptcy Transfers To The Assignee. Part 7
If the bankrupt have sent forward any goods to buyers, whose insolvency would give the bankrupt a right to stop the goods in the transit, this right accrues to the assignee, who may exercise it in the...
-What Personal Property Bankruptcy Transfers To The Assignee. Part 8
1 The assignment transfers only the property owned by the bankrupt at the filing of the petition; and the latter's earnings and acquisitions after the commencement of proceedings are his own, subject ...
-What Personal Property Bankruptcy Transfers To The Assignee. Part 9
Tested in the defendants; and it was expressly found by the jury that they took possession and occupied with a view to benefit the estate, - a finding perfectly consistent with the evidence. And a ru...
-What Personal Property Bankruptcy Transfers To The Assignee. Part 10
* often depend upon the negotiability of the paper. Frequently these come into conflict with those of the assignee, or of other parties; and in such cases the general rule would seem to be, that the b...
-What Personal Property Bankruptcy Transfers To The Assignee. Part 11
(k) Arden v. Watkins,3 East, 317. It seems that the same principles will govern the case of accommodation paper, when proof of it is attempted against a bankrupt's estate, as would apply if suit had b...
-Section X. What Interests Or Property Of The Bankrupt Do Not Pass To The Assignee
As it is the purpose of the bankrupt law to give to the creditors all they could take by attachment or levy, so it gives them nothing more. In all the States, some specified property of certain kinds,...
-What Interests Or Property Of The Bankrupt Do Not Pass To The Assignee. Part 2
And it has been held, * that the assignee took no right of action for breach of contract to employ the bankrupt in a certain way for certain wages; but this has been overruled.(u) It may sometimes be ...
-What Interests Or Property Of The Bankrupt Do Not Pass To The Assignee. Part 3
(x) See Stone v. Boston and Maine Railroad, 7 Gray, 539. (y) Bennet v. Davis, 2 P. Wins. 316; Robinson v. Taylor, 2 Bro. C. C. 589; Haselington v. Gill, 3 T. R. 620, note; Jarman v. Woolloton, id. ...
-Section XI. Of The Question Of Time
This may be important in the law of bankruptcy, in either of two ways. One refers to the moment when the bankrupt loses his power over his effects, or, in fact, loses his property in them, because the...
-Section XII. What Debts Are Provable Against The Estate
In general, it may be said, all debts and claims whatever, (hh)l The statute makes provision for this and the proof of debts, in the sections nineteen to twenty-four. They may be due and payable at th...
-What Debts Are Provable Against The Estate. Part 2
( j) The distinction on this subject is well settled in England between subsisting debts, which are payable on a contingency, and contingent liabilities, which may never become debts; and it is held, ...
-What Debts Are Provable Against The Estate. Part 3
All rent due is provable;1 and * the insolvency does not necessarily terminate the lease, unless it contain a provision to that effect, or the assignee declines assuming it. (I) try. Ex parte Young, i...
-What Debts Are Provable Against The Estate. Part 4
8th of April 1842, the plaintiff demised to the defendant certain premises in the city of New York, for the term of one year from the first day of May then next, rent payable quarterly. Defendant ente...
-What Debts Are Provable Against The Estate. Part 5
(p) Utterson p. Vernon, 3 T. R 539; Parker v. Norton, 6 id. 695, are cases of this class. There seems no inconsistency in these classes of cases. The same principle governs both. If the claim sounds m...
-What Debts Are Provable Against The Estate. Part 6
1 And where a surety for a debt holds security as an indemnity from the bankrupt, the creditor can and must compel the surety to apply the property towards payment of .the debt, and can prove only for...
-What Debts Are Provable Against The Estate. Part 7
(w) Ex parte Rashleigh; Ex parte But-terfill, 1 Rose, 192. In this case it was attempted by counsel to show that the commissioners were bound by a verdict rendered. Lord Chancellor Eldon said: I am ...
-Section XIII. Of The Proofs Of Debts And Of Dividends
Under this head we may consider first, who may prove debts, and against whom they may be proved; and, second, the manner of proof.2 All persons who have distinct claims against the insolvent, may p...
-Of The Proofs Of Debts And Of Dividends. Part 2
(d) In Ex parte Dubois, 1 Cox, 310, with the guardian; and some officer of a corporation should present the claim of the corporation, who was so conversant of its business as to be able to testify con...
-Of The Proofs Of Debts And Of Dividends. Part 3
(h) Exparte Shaw, 1 Glyn & J. 127; Ex parte Watson, 2 Ves. & B. 414; Ex parte Marsh, 1 Atk. 158; s. c. Cooke, 408; Ex parte Richardson, 3 Madd 138, Buck, 202. But it has been also held, that, when suc...
-Section XIV. Of The Discharge
This discharge must be declared at a meeting called for the * purpose, (mm) There, any creditor who has proved his claims(mn) may object to it; and may prove any facts or urge any objections which wou...
-Of The Discharge. Continued
(p) Where an action had been brought upon a debt, and, before judgment, the edly discharged, (q) And, that the statute of bankruptcy may have its full beneficial effect as a statute of * repose, we sh...
-Chapter XIII. The Constitution Of The United States. Section I. - What Are Contracts, Within The Clause Respecting The Obligation Of Them ?
In the tenth section of the first article of the Constitution of the United States, it is provided that no State shall . . . pass any . . . law impairing the obligation of contracts. * (a)1 Under th...
-What Are Contracts, Within The Clause Respecting The Obligation Of Them ?. Part 2
1 Acceptance of a gift upon certain specified terms creates a contract, and an act of the legislature authorizing the use of the gift upon altered terms is unconstitutional. Cary Library v. Bliss, 151...
-What Are Contracts, Within The Clause Respecting Their Obligation?. Part 3
(g) Terrett v. Taylor, supra: Town of Pawlet v Clark, 9 Cranch. 292; Dart-month College v. Woodward, 4 Wheat. 518; Bailey v. The Mayor of New York, 3 Hill, 531*; Hazen v. The Union Bank of Tennessee, ...
-What Are Contracts, Within The Clause Respecting The Obligation Of Them?. Part 4
The reason for the difference, as to the operation of this section upon public and upon private property, will also help us to answer the next question: What is private property, in this sense and for...
-Section II. What Rights Are Implied By A Grant
It is an important question, What are the rights or interests which are, by implication, a part of an expressed grant, so that of the agent to the profits and emoluments of the agency, as they may, fr...
-Section III. Of An Express Grant Of Exclusive Privileges
We thus reach another question. If these exclusive privileges are expressly given, how does this clause of the Constitution * operate on them? If it makes them irrevocable, and forever forbids any rep...
-Of An Express Grant Of Exclusive Privileges. Part 2
*This is, then, a right reserved and possessed by the public, and a right which extends over all property. And one question is, whether the people themselves can give away this right, or grant propert...
-Of An Express Grant Of Exclusive Privileges. Part 3
Rights of Things. It is its character of property only which imparts to it value, and alone authorizes in individuals a right of action for invasions or disturbances of its enjoyment. Vide B. Com. vol...
-Of An Express Grant Of Exclusive Privileges. Part 4
*It must be remembered that the right of eminent domain authorizes the taking of private property by the sovereign, first, for public purposes; and, second, on making or providing for compensation. Bu...
-Of An Express Grant Of Exclusive Privileges. Part 5
*It is now well settled, and on obvious grounds, that the abandonment of the taxing power is not to be presumed, where *the deliberate purpose of the State to relinquish it does not distinctly appear...
-Section IV. Of The Relation Of This Clause To Marriage And Divorce
The effect of this clause upon the subject of marriage, or rather of divorce, has also been considered, but not yet fully ascertained and defined by adjudication. It has been decided that marriage is ...
-Section V. Of The Relation Of This Clause To Bankruptcy And Insolvency
This subject has already been considered, to some extent, in the preceding chapter. We add, that the language of this clause is exceedingly general. It comprehends all contracts; and, whatever may hav...
-Of The Relation Of This Clause To Bankruptcy And Insolvency. Part 2
(e) St urges v. Crowninshield, 4 Wheat. 122; Ogden v. Saunders, 12 id. 213; Blanchard v. Russell, 13 Mass. I. Contra, Golden v. Prince, 3 Wash. C. C. 313. (f) There seems to be no distinction betwe...
-Of The Relation Of This Clause To Bankruptcy And Insolvency. Part 3
This depends on the laws in existence when it is made; these are necessarily referred to in all contracts, and forming a part of them as the measure of the obligation to perform them by the one Party ...
-Of The Relation Of This Clause To Bankruptcy And Insolvency. Part 4
(j) Calder v. Ball, 3 Dall. 386; Sat-terlee v. Mathewson, 2 Pet. 412; Watson v. Mercer, 8 id. 89; Charles River Bridge v. Warren Bridge, 11 Pet. 540, 549; Baltimore & Susquehannah R. R. Co. v. Nesbit,...
-Section VI. of The Meaning Of The Word "Obligation" In This Clause
A question, not the same with those we have considered, yet closely akin to them, has been much discussed. It is, What *does the term obligation in this clause, include? The importance of the questi...









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