acres. B was of comparative weak mind and character, timid, easily influenced, unacquainted with business, and partially deaf; and at the time of the transaction here in question was pregnant. Her husband and family appear to have no other resource than the land thus belonging to B. A, on the other hand, was a person of much intelligence, great energy and strong will, with great influence over B. By frequent interviews with and solicitations addressed to B, without knowledge of her husband, and with an agreement that he should be kept ignorant of what was done as long as possible, A, aided by the mother, induced B to agree to convey some part of her right in the eighty acres to A. On A's suggestion, B accompanied her to the office of A's attorney, who had, at A's request, prepared two deeds. By one of these, A conveyed twenty acres of the eighty acres, comparatively unimproved, to B; by the other, B conveyed the other sixty acres, with valuable improvements, to A. The attorney appears to have read the deeds in B's presence and endeavored to explain their effect; but it seems doubtful whether B understood the explanation, and she testifies that she intended so convey only twenty acres. The attorney did not advise B of her rights, nor decline to take part in consummating the transaction until she should consult with her husband or with her own attorney (who had appeared for her in litigation then pending between the parties in relation to their respective rights in the land); and the two deeds were then and there executed. In an action by B and her husband to have B's deed avoided: Held, that what took place in the office of said attorney, under the circumstances stated. must be treated as undue influence and both deeds should be annulled. [RYAN, C. J., is of opinion also that independently of what occurred at the office of the attorney, the facts show an undue influence exerted by A upon B, by which B was induced to agree to make the deed.] 2. It was error for the court below to merely avoid B's conveyance as to forty acres, lett ng it stand for twenty acres, and also letting A's deed stand; and the appeal (by A) being from the whole judgment, this court, on reversing it, directs judgment de novo covering the rights of both parties.

Opinion by RYAN, C. J.-Watkins v. Brant.

SUPREME COURT OF NORTH CAROLINA.

January Term, 1879.

A PURCHASER OF LAND sold under a decree of court may, if there arise a partial defect of title, ask an abatement of his bid, or if he has paid in the money ask a return of a proportionate part of it, and this though the purchaser knew of the existence of the adverse claim, and with such knowledge had the sale confirmed. Opinion by DILLARD, J.-Etheridge v. Vannoy.

A CAUSE OF ACTION AGAINST a party for the wrongful taking of personal property can not be joined with an action against the party who has received, and who at the time of bringing the action has possession of the property. Opinion by SMITH, C. J.- Webb v. Taylor.

A SHERIFF CAN NOT BE AMERCED for failing to sell the homestead on an execution obtained on an old debt. The imposition of a penalty for want of official diligence is a matter of State regulation, and is not affected by the decision in Edwards v. Kearzy, 6 Cent. L. J. 391. It can not be that obedience to the existing law of the State by a ministerial officer, can be regarded as official neglect and subject him to the pains

and penalties prescribed by law. Opinion by DILLARD, J.- Richardson v. Wicker.

JUROR-CHALLENGE FOR Color.-Where a colored juror was challenged peremptorily by counsel and the court suggested to the sheriff to summon a colored man from the by-standers: Held, this was unwarrantable interference by the court with the duties of the officers though it does not vitiate the verdict. If the judge may direct the summoning of a colored or white juror, class distinctions, which the recent amenements to the Constitution of the United States, and our own are intended to abolish, would thus be introduced in practical operations of our judicial system and in trials by jury, its most vital and valuable part. Opinion by SMITH, C. J.-Capehart v. Stewart.

MORTGAGE OF GOODS- MORTGAGOR REMAINING IN POSSESSION.-Where a mortgage is made on a stock of goods and the mortgagor, by the terms of the mortgage, is allowed to hold possession and buy and intermingle goods, and postpone for a considerable time the payment: Held, that although the parties to the transaction may swear that no fraud was intended, it can not remove the legal presumption. Acts fraudulent in view of the law, because of their necessary tendency to delay or obstruct the creditor in pursuit of his legal remedy, do not cease to be such because the fraud, as an independent fact, was not then in mind. If a person does, or intends to do, that which from its consequences the law presumes to be fraudulent, he is held to intend the fraud inseparable from the act. Opinion by SMITH, C. J.-Cheatham v. Hawkins.

BOOK NOTICES.

[NEW BOOKS RECEIVED.-Smith's New Hampshire Decisions: Little, Brown & Co., Boston. Biddle & McMurtries' Index to English Common Law Reports. Vol. 3: T. & J. W. Johnson, Philadelphia. Minor's Institutes. Vol. 4: M. McKennie, University of Virginia. American Decisions. Vol. 8: A. L. Bancroft & Co., San Francisco. Iowa Reports. Vol. 47: Mills & Co., Des Moines.]

STATE INSOLVENT LAWS. A Full Compilation of the Laws of Insolvency of all the States and Territories of the United States and of Canada, in force November 1, 1878. With full indexes of the subject-matter of the statutes of every State. Compiled and edited by RAPHAEL J. MOSES, JR., Counselor at Law. New York: Baker, Voorhis & Co. 1879.

The insolvency laws of the States have, since the repeal of the Bankrupt law, become of much importance. The present compilation is, therefore, timely, and will be pretty certain to find its way into most libraries. It gives, in a space of less than 500 pages, all the State statutes as to assignments by insolvents, and concerning the distribution of insolvent estates. The statutes are arranged alphabetically, and before each State is placed an index of the subject-matter of the statutes, thus rendering an examination of their provisions easy. We think that the publishers, in issuing this work, have made the profession their debtors.

CASES ARGUED AND DETERMINED in the Supreme Court of Texas, During the Latter Part of the Galveston Term, 1878, and the entire Austin Term, 1878. Reported by TERRELL & WALKER. Vol. 49. Houston: M. J. Cushing. 1879.

This volume contains less than one hundred opinions of the Supreme Court of Texas, in cases decided during the year 1878. The reporting is well done, the

arguments of counsel being well condensed, and the syllabi carefully prepared. The publisher's work is fairly executed.

Among the decisions of general interest are the following: The regulations of a railroad company that freight and passengers shall be carried on separate trains is a reasonable one; and a person who, in violation of such rules, intrudes himself upon a freight train and sustains injury, can not recover therefor: Railway Co. v. Moore. Drunkenness of a sheriff at the time of making an illegal arrest is no defense, but may be regarded as an aggravation of the offense: Hall v. O'Malley. Though a contract be illegal, a settlement and adjustment of the profits or losses resulting from it is not so: De Leon v. Trevino. "A person can not lawfully invoke the aid of the criminal process of the land to have decided a question of property or other civil right." This instruction in an action for malicious prosecution held correct: Gabel v. Weis.ensee. Money paid under a mistake of law can not be recovered back: County of Galveston v. Gorham. A judge may charge upon the legal effect of a document in a foreign language: Cowan v. Williams. A person prevented from completing a stipulated work, need not wait till expiration of time for its completion, but may sue at once on the contract, for damages sustained by its breach: Hearne v. Garrett. Under the Constitu

tion, an officer of the State may be removed for "habitual drunkenness." In defining this phrase, the court charged the jury as follows: "The word 'habitual' means the same in import as formed, or acquired by habit, or customary or usual, or common by frequent practice or use. It means more than the word sometimes; nor does it imply reduced to actual imbecility." Held, that the phrase was not sufficiently defined by said charge: Tregg v. State. Litigation for an office closes with the office. If the term expires pending the litigation, no judgment can be rendered: Lacoste v. Duffy.

DECISIONS OF THE SUPERIOR AND SUPREME COURTS of New Hampshire, from 1802 to 1809, and from 1813 to 1816. Selected from the mannscript reports of the late Jeremiah Smith, Chief Justice of those courts. With extracts from Judge Smith's Manuscript Treatise on Probate Law, and from his other legal manuscripts. Boston: Little, Brown & Co. 1879.

This is a selection of cases from the manuscript reports of Jeremiah Smith, who was Chief Justice of New Hampshire from 1802 to 1809, and again from 1813 to 1816. To these are added a large portion of an essay on probate law, and numerous extracts from other legal writings which the chief justice left unpublished at his death. The volume is something novel in legal literature, containing, as it does, case law and legal literature which are usually published in a separate form. Although the editor has not thought it necessary to put his name on the title-page, his scholarship is evident in many places in the book.

Some of the decisions are interesting. In Muzzy v. Williams, the learned chief justice discusses a question concerning religious denominations with great learning and at much length, holding that Presbyterians and Congregationalists are "different sects" within the meaning of the Constitution, and, therefore, a Presbyterian could not be forced to pay a tax for the support of a Congregational minister. His notes to the opinion in this case are drawn from many sources-from Walpole's works and Erskine's speeches. Dryden's poems and Scott's novels, from Voltaire, Boswell, Cicero, and the English reviews. Fisher v. Steward decides that one who finds a swarm of bees in a tree on another's land, marks the tree and notifies the land-owner, can not maintain trover against the latter for taking the honey. The law as to bees is set out in a note, "Bees are feræ naturæ, except when hived or re

claimed; when a swarm lights on my trees they are not mine. But it would seem that, if they hive themselves in my tree, they are then mine ratione soli. And if they are found on my ground, I have a qualified right in them; to the young, ratione impotentiæ, and to the labor of the bees or honey, because they are on my land and are my hive. I have on these accounts, to say the least of it, a better title than any other person." In State v. Page, the defendant held genuine negotiable notes against A. He made others like them, and on payment gave up the false ones and kept the genuine ones. This, the chief justice held, was forgery, and convicted and sentenced the prisoner. "But," he adds in a note, "the defendant immediately broke jail and escaped." In Brown v. Langdon, another case affecting a church, he decided that a religious congregation was capable of taking by devise. One paragraph of this opinion is worth quoting: "Common law as well as statute law, grows out of the situation and circumstances of the people. There was a time in England, when the lay gentry thought they saw the property flowing into the coffers of the clergy a little too freely. The clergy of that day were not content with the personal property; they became possessed of a considerable proportion of the real property of the kingdom. Hence the laws to restrain alienations to the clergy. These laws were not imported into this country, at least into New England, because they were not wanted. The clergy were poor. I speak of the first clergy of New England-they abhorred riches. The wealth of a clergyman in those days was his crown of rejoicing, the number of converts he made, the number of sinners he reclaimed. He disdained worldly wealth. He coveted not houses and lands. Very many of the clergy of that day accounted it unlawful and unchristian for a clergyman to have any fixed salary. Hence I conclude there never was any law in New England to prohibit clergymen or religious corporations from acquiring property." Tempora mutantur at nos mutamus in illis. In Cutts v. Frost, the word "seal" was written after the signatures of the parties on a document, but no seal was affixed. It was held not to be a sealed instrument. The law is otherwise now in most of the States, by express statute. All the cases just mentioned were decided between the years 1804 and 1814.

The remaining eighty pages are taken up with extracts from the chief justice's manuscript Treatise on Probate Law (a work which was never published, but which was made use of by Mr. Webster and others), and other legal writings. This part of the book will well repay a perusal. The author writes with force, and what he says may be read with profit now. He sees no use for a seal to a will which the State statute requires. "It is an unmeaning, useless ceremony, and affords no security against fraud or forgery." A wellknown maxim he alters thus: "De of a cent non curat lex." In an action on a penal statute, the penalty was alleged to be £100, which was averred to be equal to $333 33, and it was moved in arrest of judgment that it should have been stated to be equal to $333 33 33-100. He objects to the phraseology of a statute, "A controversy of $200 value." "The value of a controversy is a singular mode of expression. Most people find a controversy of little value; often worth nothing, and sometimes, like negative quantities in algebra, worse than nothing." From an opinion delivered in 1808, it would seem that arbitrators in those days were like the clergy-they despised heavy fees." "It is not unfrequent," he says, "for arbitrators to receive for fees what they can drink." But they may have been able to drink a good deal; and if liquor was scarce and high, this perhaps made a difference. Of an agreement to apply for an act of incorporation, he says: "It was a mere agreement to be created,to be born; might not the signers repent before actual birth." And

of a chartered corporation: "This body was created out of chaos, or made of raw material, June 14, 1800. It has no parent, no ancestor, no predecessor."

The chief justice was evidently a good pleader, for he takes pains to point out defects in pleadings brought before him, and, in one case, in this style: "In the course of my judicial duty in examining records and pleadings, I have seen none more slovenly and incorrect than the record now under consideration. If the copy with which I have been furnished is not faulty; the declaration is incorrect; the service is bad; the plea would be bad on error; it would not be cured by verdict; the replication is bad; the joinder is bad; the causes of demurrer are many of them absurd; and even the joinder in demurrer might itself be demurred to, if such a thing were ever allowed. They serve to disgrace a State in whose records they appear." In another unpublished opinion, he speaks to the bar generally: "I can not help repeating, on this occasion, what I have so often mentioned-my extreme mortification to find that so little improvement is made in this State in this most useful, necessary and honorable science of pleading, while, in almost every other State in the Union, it is cultivated, and, in some States, has already arrived at a considerable degree of perfection." More causes, he remarks, are lost in the courts for want of good orderly pleading, than for lack of good speaking. He reminds them that the records of the court will remain after they are forgotten, and objects strongly to having his name transmitted to future generations in company with the kind of pleadings which are constantly brought to his notice. He was a great admirer of Chief Justice Parsons, who, he considered, knew more of the New England law, which existed while the British held it, than any other man that has lived, or ever will live. In an opinion in 1815, referring to a case where Parsons had been counsel, and had not taken a certain exception, Chief Justice Smith said: "Parsons did not take the exception. We must not be wiser than that great man."

If the legislators of to-day who, we can hardly persume, are wiser than those of a former generation, will consider the advice of the chief justice with which we will end this review, his successors may have reason to thank the unknown editor of this work for bringing to light the wise words of the dead jurist. Speaking of legislative ignorance of the common law he says: "The legislature can abrogate the law as they can the rules of their own making. But it would be well for the people if they would first take the trouble to understand it. No man acquainted with the common law can look into our statutes and not see that the framers of the statutes were often ignorant that the common law contained precisely the same provision, and in many cases a provision different and better adapted to the wants of society." And can it be said that what he says concerning poorly drawn statutes has lost any of its force in the sixty years which have elapsed since its utterance. "From my own experience I can say that our courts meet with more perplexity in their endeavors to unravel the meaning of ill-digested and ill-penned statutes than in settling what the common law is."

QUERIES AND ANSWERS.

ANSWERS.

No. 18.

[8 Cent. L. J. 287.]

A may recover the proceeds of the draft in an action of assumpsit against D, who holds the proceeds. See the leading case of Moses v. McFarland, 2 Burrows, 1,005. But if C, or his assignee, or both, claim an in

terest in the controversy, then he or they, as the case may be, may be made parties defendants. See Whittlesey's Prac., p. 112, sec. 90, and authorities there cited. M. THOMPSON.

St. Louis.

NOTES.

HON. SAMUEL TREAT, judge of the United States District Court for the Eastern District of Missouri, will sail for Europe about the first of May, to take a short season of rest. There is no judge on the bench by whom a vacation has been more richly earned. Judge Treat has now been engaged, continuously, in judicial cases for nearly thirty years. During more than ten years of this time his court has been a court of bankruptcy-full of business, and always in session. He has displayed a rare good sense in keeping the administration of justice, in his court, wholly disassociated from party politics, and has discharged the duties of his office without ostentation, with learning, integrity and skill. His penetrating intellect has been quick to grapple with novel questions, and to master their difficulties; and in dispatching the numerous and complicated details of a court of bankruptcy, he has shown a remarkable administrative talent. We wish him a pleasant journey and safe return.

THE SUPREME COURT OF THE UNITED STATES has under its consideration the question whether or not a man who has been disbarred by the courts of his own State, possesses the necessary qualifications to entitle him to become a member of the bar of that high tribunal.—A man was tried in Nevada for cattle stealing. The jury acquitted him without leaving the box, and upon his return home a friend inquired as to the result of the trial. "No cause of action," said the party; "I merely killed the ox in self-defense, and ate him for spite, and, of course, I was acquitted by the intelligent jury."- -When the defendant, in Winn v. State, came to look at the indictment, which charged him with assault with intent to murder, his eye first caught the words in lare type, "V. B. & T., Printers, Stationers, Lithographers and blank book makers, St. Louis." Being convicted and sentenced to the penitentiary for two years, he recollected this title, and, being advised that these words were not by the Texas Criminal code, an essential part of his indictment, he took his case to the court of appeals. But that court, on the 15th ult., overruled his objection, not, however, without making a few remarks concerning printed forms of indictments. "Though the statute," said White, J., "defines an indictment to be the written statement of a grand jury, accusing a person therein named, of some act or omission which, by law, is declared to be an offense, it has never been held that a printed form, with the blanks properly filled in writing, was not a sufficient compliance with the law. We do think, however, as a matter of taste and propriety, in having forms printed for his sole convenience, the prosecuting officer might stipulate with his printers that the blanks to be printed should not be used by them as an advertising medium, or, if so, that their names should not be placed in so conspicuous a portion of the form, and in such connection with it, as that their advertisement will be mistaken, as seems to have been done by defendant and his counsel in this case, for part and parcel of an indictment charging him of an assault with intent to murder. The process and pleadings necessary in criminal prosecutions for violations of the law, are not, it seems to us, the proper medium for advertising private individual enterprises. Suffice it to say, however, that this advertisement is not part of this indict. ment, and does not invalidate it."

SAINT LOUIS, MAY 2, 1879.

CURRENT TOPICS.

In the number of this JOURNAL for March 28, 1879, attention was called to a recent decision of Dillon, J., in the United States Circuit Court, in this city, in the case of Robinson v. St. Louis Mutual Life Ins. Co., holding that a waiver, by reason of a circular issued by the company, of the right to claim a forfeiture of a life policy, might be set up by replication in a law action, and that it was unnecessary to transfer the litigation to the equity side of the court to obtain the benefit of such waiver. The plaintiff, who was the beneficiary in the policy, had brought suit on the law side of the court to recover on a death loss, and the company had set up, by way of defense, that the policy was fortified by reason of the failure of the insured to pay the interest in advance, (at date of one of the annual payments), on an outstanding note-the policy providing that such failure should cause an absolute forfeiture of the policy, and of all rights of every kind thereunder. Thereupon the plaintiff filed this bill in equity to be relieved from, the forfeiture, predicating his right to equitable relief upon the terms of the circular in question; and upon the rendition of the decision above mentioned, set up this waiver by replication in the action at law. The cause was tried by the court and a jury; and, under the instructions of the court,the jury found for the plaintiff the amount of the equitable value of the policy, as mentioned in the circular.

This case is of interest upon the question of the effect of circulars and prospectuses of life insurance companies, upon forfeiture clauses in their policies. The provision of the circular upon which the court held there was a waiver of the forfeiture, was as follows: "If, during the year, the expenses exhaust the 'loading,' the interest received and mortality experienced be equal to that assumed in the construction of the premium rates, there will be nothing to divide; but, so far, in the general experience of American companies, the Vol 8-No. 18.

or

the

less and the rate of interest higher than that assumed, thereby saving a profit to surplus company. Other sources of profit, such as lapsed and forfeited policies which have always been and are now by most companies regarded as rich sources of profit, are not taken into consideration, for the reason that this company has made all of its policies non-forfeitable either in granting paid-up' policies for an equita ble portion of the original amount, or by extending the policy in full force, until its value is exhaused in paying for insurance-the company holding the doctrine that it ought not to make a profit out of the misfortunes of such of its members as may, through adverse circumstances, be unable to promptly meet their annual payments." And, in another place in the circular, it was said: "This ratio might have been still further reduced, had the company been willing to take advantage of the misfortunes of such of its members as through adverse circumstances were unable to meet their annual payments, and by forfeiture of their policies to appropriate their value toward paying expenses, as many other companies have done." The only proof adduced that the insured ever saw the circular, was the fact that one of these circulars was regularly mailed to him by the agent of the company; nor was there any application to the company for a paid-up policy for the equitable portion of the original amount. This holding of the Federal judges is predicated upon the same view announced by the St. Louis Court of Appeals, in the recent case of Steele v. St. Louis Mutural Life Insurance Co., 5 Cent. L. J. 158, where the doctrine is fully considered, and the authorities reviewed.

In Northwestern Mutual Life Ins. Co. v. Perrill, recently decided in the United States Circuit Court for the Southern District of Ohio, the complainant filed its bill against the defendant and others to foreclose a mortgage given to secure the payment of the amount stipulated in and the fulfillment of the terms and conditions contained in a certain bond. The said bond, among other things, contained the following provisions, viz: "That if said bounden, Zebulon H. Perrill, his heirs, executors, administrators, or any of them, shal

well and truly pay, or cause to be paid, unto the above mentioned The Northwestern Mutual Life Insurance Company, or to its certain attorneys, successors or assign, the full and just sum of eight thousand dollars at the expiration of five years from date of these presents, with interest thereon until paid, at the rate of eight per centum per annum, payable semi-annually, on the first day of January and of July, in each and every year, etc." It was conceded that the terms of the mortgage had been broken and that the complainant was entitled to a decree of foreclosure for the amount stipulated for in the bond, with interest from January 1, 1877, the manner of computing the interest being submitted to the court. SWING, J., said: "By the terms of the bond, the principal is to be paid at the expiration of five years, with interest thereon until paid, at the rate of eight per centum. Following the case of Mounett v. Sturges, 25 Ohio St. 384, we hold that the contract is to pay interest at the rate of eight per cent, until the principal debt is paid, and not merely for the time the bond is to run. It is stipulated that this interest is payable semiannually. Where semi-annual installments of interest have become due, and are not paid, each such installment of interest will bear interest from the time it is due, at the rate of six per cent. Dunlap v. Wiseman, 2 Dis. 398; Monnett v. Sturges, 25 Ohio St. 384; Cramer v. Lepper, 26 Ohio St. 59. complainant will, therefore, be entitled to interest on the principal debt at the rate of eight per cent. from January 1st, 1877, until the time of taking the decree, and interest at six. per cent, per annum upon each semi-annual installment of interest from the time when they respectively fell due."

COMPOSITION WITH CREDITORS.

The

It is a rule of law founded in reason, and abundantly sustained by the authorities, that where the amount of a debt already due1 is ascertained, and not disputed,3 it can only be discharged by payment in full, and that an

(1) Brooks v. White, 2 Met. 283: Smith v. Brown, 3 Hawks, 580; Fitzgerald v. Smith, 1 Ind. 310. (2) Bateman v. Daniels, 5 Blackf. 71. (3) Bunge v. Koop., 48 N. Y. 225.

(4) Ogborn v. Hoffman, 52 Ind. 439; Stone v. Lew➡ man, 28 Ind. 97.

agreement to accept from the debtor' a part in full payment of the entire debt, is without consideration and constitutes no defense to a suit for the unpaid portion of the debt. It has indeed been held that such an agreement, if executed by the payment of the stipulated part, would be enforced as to the remainder," but the great weight of authority is to the contrary.

An agreement to release the debtor from his debt must rest upon a new and valid consideration to be effectual.8 So, if the debtor give other security,9 or make payment at a place,10 or in any manner,11 more beneficial to the creditor than that prescribed in the contract, or to which he is otherwise entitled, the consideration is sufficient to support the agreement. Under the common law, it is true, any creditor or creditors and their debtor might enter into such a contract as the parties thereto might agree upon, and by executing a release under seal, the creditor might effectually release the debtor, although no consideration was given therefor.12 But this in no way conflicted with the rule laid down, for although the reason why the use of a seal would effect a discharge, while the same writing not sealed would not produce such a result, is rarely alluded to, yet it is perfectly obvious; at common law the seal was conclusive evidence of a sufficient consideration, and hence, when attached to a release of a debt, was conclusive evidence of a sufficient consideration for such release 13

It necessarily follows that wherever the distinction between sealed and parol contracts

(5) Brooks v. White, supra; Sanders v. Branch Bank, 13 Ala. 353; Boyd v. Hitchcock, 20 Johns. 76; Lewis v. Jones, 4 B. & C. 506.

(6) Pinnel's case, 5 Co. 117; Fitzgerald v. Smith, supra; Bright v. Coffman, 15 Ind. 371; Jackson v. Stackhouse, 1 Cow. 122; Ryan v. Ward, 48 N. Y. 204; Bunge v. Koop, supra; Gray v. Barton, 55 N. Y. 68; Fitch v. Sutton, 5 East. 230; 2 Pars. Cont. 618, note w. (7) Milliken v. Brown, 1 Rawle. 391; Keen v. Vaughan, 48 Pa. St. 477.

(8) Acker v. Phoenix, 4 Paige, 305; Sanford v. Huxford, 32 Mich. 313.

(9) Brooks v. White. supra; Kellogg v. Richards, 14 Wend. 116; 2 Pars. Cont. 619.

(10) Smith v. Brown, supra.

(11) Sibree v. Tripp, 13 M. & W. 23; LePage v. Mc. Crea, 1 Wend. 164.

(12) Harrhy v. Wall, 1 B. & Ald. 103; Ryan v. Ward, supra.

(13) 2 Bl. Com. Chitty, 445, n.8; 7T. R. 477; 1 Plowd. 308; Gray v. Barton, 55 N. Y. 68; Leonard v. Bates, 1 Blackf, 172; Phelps v. Sprowle, 1 My. & K. 231: Jackson v. Stackhouse, 1 Con. 122; Taunton v. Pepler, 6 Madd. 166.