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ANNOTATE

E DECIDED IN THE COURT OF PROBATE LAW.

By FRANK S. RICE, Esq.

aw of Real Property,"

n annual rolume onls ose des

dissented from BATE REPORT

Journal.

the proposition so long Central Law

upheld, in an opinion full of vigor and

logical reasoning. They hold in terms that ST. LOUIS, MO., MAY 7, 1897. the acceptance by the payee of a note of a VBATE LAW.

less sum in payment than that actually due On page 388 of this issue will be found a

under the terms of the note, on the distinct compilation of authorities on a constitutional agreement that such payment shall extinguish dministration of the Estare e subject of growing modern interest, viz., the

the debt evidenced by the pote, operates to nature of the majority required in favor of satisfy the note and discharge the debtor. questions submitted to a popular vote. The

The contrary rule is, in nearly all the cases annotation appears in connection with the

declared to have been first announced in recent Idaho case of Green v. State Board of

Pinnel's Case, 5 Coke, 117a, whereas an exCanvassers, wherein it was held that under

amination of that case, as the Mississippi TE REPORTS. 8 vols.) the provisions of the constitution, providing court shows, does not seem to justify such an

for the amendment thereof where a majority interpretation. Pinnel's plea was that before EADY. of the electors voting upon that question

the maturity of his bond for the larger som vote in favor of the amendment, the same is plaintiff had accepted the lesser sum agreed ratified although the votes thus cast are

upon between the parties in full satisfaction not a majority of the votes cast at the gen

of the original debt. Now, all the authorieral election for State officers. A later

ties, American and English, including Coke decision on the subject, not included in the

himself, agree that this was a good defense, annotation, is Citizens of De Soto Parish v.

and that the plaintiff was bound by it, if deWilliams, 21 South. Rep. 647, wherein the

fendant should properly plead it to a suit for Supreme Court of Louisiana decides that

the entire original debt. But the hapless 1. States of the l'nion upea te what is meant by the phrase "by a vote

of Pinnel, in that remote period when courts the majority of the property tax payers in

were almost as jealous for the observance of numbers and in value” occurring in the con

technical rules of special pleading as for the stitution is a majority of the property tax

execution of justice according to right, was payers actually present and voting at an elec- adjudged to pay the whole debt, the plaintiff tion, and that all qualified property taxpayers having judgment against him because of his who absent themselves from an election duly

“insufficient” pleading; "for,” says Coke, called are presumed to assent to the expressed

“he did not plead that he had paid the £5. will of the majority of those voting, unless

28. 2d. in full satisfaction (as by law he the law providing for the election otherwise ought), but pleaded the payment of part

generally; and that the plaintiff accepted it

in full satisfaction.” "However amusing It is alleged to be the doctrine of the com- and absurd,” says the Supreme Court of mon law and at least has been held in Eng. Mississippi “this may appear to us, it was land since the days of Coke, though not un- the point decided in Pinnel's Case; and the brokenly nor without now and then hostile question before us was not only not decided, criticism from bench and bar, that an agree

but it was impossible that it should have been. ment by a creditor with his debtor to accept There Pinnel pleaded payment of the lesser a smaller sum of money in satisfaction of an sum before the date of the maturity of the ascertained debt of a greater sum is without greater sum named in the bond, and its acconsideration and is not binding upon the ceptance by his creditor, in full satisfaction ; creditor, even though he has received the and he lost, unhappy wretch that he was, smaller sum agreed upon in the new contract. born two or three centuries too soon, and And in the United States, blindly following not knowing the difference betwixt legal what was supposed to be the settled law in tweedle-dum and legal tweedle-dee, beEngland for years, our courts have uniformly cause he pleaded that he paid a part of the announced adberence to this rule. The greater original sum, and that the plaintiff Supreme Court of Mississippi in the accepted it in full satisfaction, and did not case of Clayton v. Clark, has recently plead that he paid it in full satisfaction. The struggled with the question and bas boldly | rule is found in Pinnel's Case, but it is bold

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and other Courts in every the most important pois

li haring before them the me

's. upon subjects ethich bereits of the Cases presented arches

l'ourts.

declares.

olumes: Probate and to hties, and liabilities of Erol Investments, Collection

on malities of Execution and Brit Testing. Payment, Ibars ities &C., &c.

form an important andra be found a very full color

of different States os coje *** on the subject under dietais b: Duties of Executor spidos

in Conditions Subsequent

- Administration on Estate

Testamentary-Acknowing ministrator-Use of Interesa utors-Effect of Attestations

bandsome octaro of

Law Publishers

ÞAU STREET, NEW

ILER!

the thing

principally weighs with me in thinking that | $9

dictum, and, as stated by Lord Blackburn in itor. Why shall not money Foakes v. Beer, before the House of Lords (9 sought to be secured be new notes of third App. Cas. 605), for the long period of 115 parties, notes whose payment in money is deyears after Pinnel's Case was decided no case signed to be secured by mortgage, and even is to be found in which the question was negotiable notes of the debtor himself—why raised whether payment of a lesser sum could shall not the actual payment of money, cash be satisfaction of a liquidated demand.” in hand, be held to be as good consideration

for a new agreement, as beneficial to the The Mississippi court quote with approba- creditor, as any mere promises to pay the tion the observations following, with which

same amount, by whomsoever made and Lord Blackburn concluded his opinion, in- whomsoever secured? And why may not tended to show that Coke was mistaken as to men make and substitute a new contract and fact as well as law in endeavoring to uphold agreement for an old one, even if the old the rule announced by the dictum in Pinnel's contract calls for a money payment? And Case that the new agreement to pay a lesser why may one accept a horse worth $100 in sum is void because unsupported by any con- full satisfaction of a promissory note for sideration ; that is, that no benefit, in such $1,000, and be bound thereby, and yet not case, inured to the creditor, viz: "What be legally bound by his agreement to accept

$999, and his actual acceptance of it, in full Lord Coke made a mistake of fact, is my satisfaction of the $1,000 note? No reason conviction that all men of business, whether can be assigned except that just adverted to, merchants or tradesmen do every day recog. and this rests upon a mistake in fact. And nize and act on the ground that prompt pay- a rule of law which declares that under no ment of a part of their demand may be circumstances, however favorable and bene more beneficial to them than it would be

ficial to the creditor, or however hard and to insist on their rights and enforce payment full of sacrifice to the debtor, can the pay. of the whole. Even where the debtor is per- ment of a less sum of money at the time and fectly solvent and sure to pay at last tbis of- place stipulated in the original obligation or ten is so. Where the credit of the debtor is afterwards, for a greater sum, though scdoubtful it must be more so." Turning to cepted by the creditor in full satisfaction of the holdings of the American courts on this

the whole debt, ever amount in law to satisquestion the Mississippi court is "profoundly faction of the original debt, is absurd, irraand painfully impressed with the slavish ad

tional, unsupported by reason, and not herence of the legal and judicial minds to founded in authority, as has been declared precedent or in many cases to what seems to by courts of the highest respectability and of be precedent.” The court then considers

last resort, even when yielding reluctant assuch

and either distinguishes or sent to it.” The court further demonstrates repudiates them. Attention is called to

its consistency by overruling some of its Harper v. Graham, 20 Ohio, 105, wherein the own earlier opinions. absurdity of the old and technical doctrine is exposed. There is much force in the following words with which the Mississippi Court concludes its opinion: “However it may NOTES OF RECENT DECISIONS. have seemed 300 years ago in England, when trade and commerce had not yet burst their AUCTIONS-FRAUD Puffing.--Flannery swaddling bands, at this day, and in this

v. Jones, decided by the Supreme Court of country, where almost every man is in some Pennsylvania, is an instructive case on the way or other engaged in trade or commerce, subject of the illegality of fictitious bids st t is as ridiculous as it is untrue to say that an auction.

The holding of the court is that the payment of a lesser part of an originally for an auctioneer at sale of property, offered greater debt, cash in hand, without vexation,

without reserve, to make fictitious bid at the cost, and delay or the hazards of litigation in

instance of the owner is a fraud which cauan effort to collect all, is not often-nay, not be legalized by custom and releases the generally--greatly to the benefit of the cred- | purchaser. The court says:

cases

VOL. 44

CENTRAL LAW JOURNAL.

379

to-wit, that "in sound policy no person ought in any case to be employed secretly to bid for the owner against a bona fide bidder at a public auction. It is a fraud in law on the very face of the transaction, and the owner's interference and right to bid ought to be intimated in the conditions of sale." In support of all these findings, and especially the fifth, I cite Staines v. Shore, 16 Pa. St. 200, wherein the supreme court held that it made no difference that without the bids of employed puffers the property would go for less than its value, and, commenting upon the ruling of the court below, said: “The ruling judge instructed the jury that, if the horse was actually worth the sum to be paid for him, the buyer got the value of his money, and could not have been defrauded. The fallacy of the principle is in assuming that there is a standard of value independent of the wishes and wants of the bidders, and that every man is willing to buy by it. '. A man is defrauded whenever he is incited by artful means to bid more than he other. wise would. He has a right to buy at an undervalue, where the necessities of the owner compel him to sell; and whenever the price is ever so little enhanced by a secret contrivance, he is cheated. A sale by auc. tion presupposes a sacrifice, or at least a willingness to sell for what can be had; but, should the vendor stick for the last penny, it would be idle to set the property up, because his price could be as readily obtained at private sale. ··· If the owner proposes to sell without reservation as to price, let him openly reserve a right to bid. For no fair purpose is the employment of a puffer necessary, and it must vitiate every sale in which recourse is had to it." Rigg v. Schweitzer, supra, does not rule this question against the plaintiff.

tion of the $1,000 note:
assigned except that just ata

rests upon a mistake in bo
pt law which declares thet
tances, bowever farorade o

the creditor, or bort acrifice to the debtor

, L a less sum of mones at the

by shall not morej -> to be secured be Der ne

In the case of Rigg v. Schweitzer, affirmed in 170

Pa. St, 549, 33 Atl. Rep. 116, we had occasion to renotes whose payment in e view the law with regard to fraud in bidding, and to be secured by mortges

the authorities are cited therein. I specially refer to

Yerkes v. Wilson, *81 Pa. St. 10, where it was held ble notes of the debtor lik

that the employment of puffers by owners to bid up pt the actual payment of 2 property selling at auction with a view of raising the 1, be held to be as good as price on bona fide bidders is a fraud upon them, and

will avoid the sale at the option of the purchaser, and lew agreement, as becebal

in the trial of such questions of fraud every circumr, as any were promise! stance or fact from which a legal inference of fraud

may be drawn is evidence; that a reservation in con. amount, by whomsoete?

ditions of a public sale to the owners of an open bid bever secured? And ab

for themselves is proper, but, the owner having ike and substitute a new made a secret bid, the sale was set aside. The case ent for an old one, eren la

of Bexwell . Christie, Cowp. 395, affirmed by our

supreme court in Staines v. Shore, 16 Pa. St. 200, and t calls for a money PT

Peppock's Appeal, 14 Pa. St. 446, is so pertinent to the as one accept a horse or subject that I quote from it as follows: "The question, Listaction of a promisery are then , is whether the owner can privately

employ another person to bid for him. The basis of all dealings and be bound therebr, and

ought to be good faith, for, more especially in these Alls bound by his agtet Dell

transactions, where the public are brought together

upon a confidence that the articles set up to sale will bi his actual acceptante

be disposed of to the highest real bidder, that could never be the case if the owner might secretly and privately enhance the price by a person employed for that purpose; yet tricks and practices of that kind daily increase, and grow so frequent that good men give in to the ways of the bad and dishonest, in their own defense. But such a practice was never openly avowed. An owner of goods set up to sale at an auc. tion Dever yet bid in the room for himself, If such a practice were allowed, no one would bid. It is a

fraud upon the sale and upon the public. The dispulated in the original

dallowing it is no hardship upon the owner; for, if he

is unwilling his goods should go at an underprice, he may order them to be set up at his own price, and not lower. Such a direction would be fair. Or be might do as was done by Lord Ashburnbam, who sold a large estate by auction. He had inserted in the conditions of sale that he himself might bid once in the course of the sale, and he bid at once £15,000 or 120,000. Such a condition is fair, because the public are then apprised, and know upon what terms they bid. In Holland it is the practice to bid downwards. The question, then, is, is such a bidding fair? If not, it is po argument to say it is a frequent custom. Gaming, stock-jobbing, and swindling are frequent. But the law forbids them all. Suppose there was an agreement to abate so much, which is the case where goods are sold by one person in the trade to another. They abate sometimes 10 or 15 per cent. Such an agreement between the owner and bidder, at a sale by auction, would be a gross fraud. What is the nature of a sale by auction? It is that the goods shall go to the bighest real bidder. But there would be an end of that if the owner migbt privately bid upon his own goods. There is no contract with the auctioneer. Be is only an agent between the buyer and seller. He may fairly bid for a third person who employs bim, but not for the owner.” In Wheeler v. Collier, Moody & M. 123, Lord Tenterden, C. J., said: “If the owner of an estate put up for sale by auction employ a person to bid for him, the sale is void, although only one such person be employed, and although he is only to bid up to a certain sum, unless it is announced at the time that there is a person bidding for the owner.”

Ad excellent review of these various authorities appears in the case of Towlê v. Leevitt, 23 N. H. 360, wherein the court adopted the remarks of Chancellor Kent (2 Kent, Comm. *539), as the true doctrine,

ols, for a greater son

the creditor in ful str.
le debt. ever amount in Br?
of the original debt isas
unsupported by resse
in authority

, as has been
6

of the highest resperate prt, even when yielding na ..” The court further de

istency by overruling og

ier opinions.

INJUNCTION PURCHASE OF INTEREST IN NEWSPAPER CONTROL AS EDITOR.-One of the points decided by the Supreme Court of Missouri, in Jones v. Williams, 39 S. W. Rep. 486, is that one who purchases an interest in the stock of a corporation, and, in consideration thereof, is to be editor and manager

and have control of its newspaper, for a definite time, at a fixed salary, is entitled to have his control protected by injunction, remedy at law not being adequate. The opinion, which discusses several interesting questions growing out of the main point passed on, concludes as follows:

Is there such a want of mutuality of remedy as will prevent a court of equity from granting injunctive relief? Under the contract, plaintiff was appointed editor and manager of the Post-Dispatch. These duties require personal services, which it may be agreed a court of equity could not enforce. It could not, by decree, compel an editor to write editorials or to give direction to the business. But this want of power in the courts is supplied in the contract itself. Wbile Mr. Pulitzer expresses the ut. most confidence in plaintiff, and his willingness and ability to discharge his duties with fidelity, his own business instincts are too acute to allow the contract to rest in confidence alone. The corporation was organized "for pecuniary profit and gain." Rev. St., 1889, sec. 2771, subd. 11. Mr. Pulitzer does not lose sight of the primary objects to be accomplished. He

ES OF RECENT DECA

pns-- Fraud - Pirna

decided by the Supre ania, is an instructive the illegality of In. The holding a ctioneer at sale of prayer

feserre, to make ticuits

of the owner is s

balized by custom sol mua

The court sup:

expressly fixes a pecuniary test of ability and fidelity. central idea of the executory part of it is the control The contract provides: “And it is further agreed by and management of the paper. That means the posand between the parties hereto, as a test of the ability session and use of the property, and not mere em. of the party of the second part to properly manage ployment to write editorials. and edit said St. Louis Post-Dispatch, that such appointment and salary shall cease and determine in the event that the gross revenues of the Post-Dispatch from advertising and circulation combined shall, dur

RIGHT OF A CREDITOR TO SUE ing the year 1895, be less than the gross revenues from the same sources combined were for the year

AND ATTACH BEFORE EXPIRATION 1894. And it is further agreed by and between the OF THE CREDIT. parties hereto that said appointment and salary shall cease and determine in the event that the net profits

The statute laws of many of the States conof the Post-Dispatch for the year 1896 shall be less than the net profits for the year 1895. And it is

tain no provisions by which a creditor is perfurther agreed by and between the parties hereto, mitted to attach before maturity of his debt, their executors, administrators, or assigns, that in the

the effects of a debtor who fraudulently obcase of the death of the party of the second part, his resignation, failure of health, or retirement, or in.

tained credit for goods, or who is about to ability to perform the duties and laborg of editor and abscond from the jurisdiction with his prop. manager of the Post-Dispatch at any time within

erty, or who is disposing of his effects for the three years from the date of the execution of this contract, the party of the first part shall have the op.

purpose of bindering, delaying and defraudtion to repurchase for the sum of eighty thousanding his creditors. The question therefore dollars ($80,000) the herein mentioned one thousand

arises, whether a creditor may have an atsix hundred and sixty-seven (1,667) shares of the stock of the Pulitzer Publishing Company,

tachment under such circumstances before which in such event the party of the second maturity of his debt, in the absence of an expart agrees to sell and transfer to the party of

press statutory concession of the right. This the first part for said sum of eighty thousand dollars ($80,000).” It is further provided that the appoint:

question depends mainly upon another, ment and salary should cease if plaintiff should "at namely, whether the defrauded vendor may any time during said term accept or occupy any pub. maintain assumpsit for the price of the goods lic or political office, elective or otherwise, or engage in any other business, of any kind or description."

before the expiration of the credit. The The test of duty and liability is thus expressly agreed general rule of the common law undoubtedly upon, which is absolutely determinable, and does not

is that no action can be maintained to redepend upon the views or opinions of either party. The failure to come up to the test is followed by a

cover a debt which has not yet matured." I? forfeiture of the position and salary. The test is suc. the debt be for the purchase price of goods, cess. The remedy, in case of failure for any of the and the purchase was effected by means of causes, is removal from position and forfeiture of contract. Should plaintiff fail to perform his contract

the fraudulent representations of the buyer, according to the tests provided, and should then per- the purchaser must nevertheless await the ex. sist in controlling the paper, in disregard of the pro

piration of the credit before he can maintain vision that the appointment should cease, there can be no doubt that a court of equity would enjoin his

an action for the price ; for such an action interference, just as it can enjoin an interference with waives the fraud and affirms the contract.' bis rights if threatened. Keeping in view all the time

The vendor, however, may disaffirm the conthat the right to manage and control the newspaper is the matter in issue, it is apparent that the remedy

tract and sue in replevin to recover the goods is natural. The question is, are the defendants en- | themselves, or in trover to recover their titled to the control? A court of equity can answer value, treating them as baving been wrong. the question, and enforce its conclusions, on the petition of either party. Defendants could, undoubtedly,

fully gotten possession of by the purchaser charge by cross bill that plaintiff had failed to per- and converted to bis use. These two acform the conditions of the contract, and had forfeited tions amount to an election on the part of the his right to control, and, if proved, the court could

seller to treat the contract as void, and it is require plaintiff to allow them to resume control and enjoin an interference with it.

therefore immaterial, with respect to his right The law is well settled that personal contracts for to maintain them, whether the credit bad or service will not, because they cannot be enforced by courts of equity. But we do not view the duties to

had not expired at the time wben they were be performed by plaintiff under the contract as mere instituted. But they are ex delicto in form, personal service or simple employment. In his control and management of the paper he knows no mas. 1 2 Stark. Ev. 55; Musser v. Price, 4 East, 162; ter or employer. He is answerable to no one for the

Dutton v. Solomonson, 3 Bos. & Pul. 584. manner of performing his duty. He is accountable

2 Chitty Cont. (10th Am. Ed.), 432; Ferguson V. only for the stipulated results. His position gives Carrington, 9 Barn. & Cres. 59. him a property right in the possession, control and

3 Chitty Cont. Id.; Ferguson v. Carrington, 9 Baru. management of the paper he agrees to edit and man

& Cres. 59; Strutt v. Smith, 1 C. M. & R. 312; Selwas age. A reading of the contract will show that the v. Fogg, 5 Mees. & W. 83.

i

who is disposing of his eta

at under such circumstare

of his debt, in the absence de atutory concession of the res

depends mainly upit whether the defrauded med 1 assumpsit for the price de he expiration of the corect rule of the common iselt no action can be mainst Hlebt which has not yet D3

be for the purchase prix. purchase was effected by dulent representations da baser must nevertheless sc. of the credit before be as

EVAL.

and the gist of them is a tort committed by mitted that the exception so established is of the executory part olan bent of the paper. Tik za a

the defendant; hence they cannot be aided eminently reasonable and just toward the de of the property, and a

by attachment in any of the States in which vendor, and productive of no injustice to the > write editorials.

attachments are allowed only in suits to re- purchaser. The common law rule that no cover & debt or damages for the breach of action can be maintained for the price of

contract. In consequence of these princi-| goods until the credit upon which they were OF À CREDITOR N

ples, it is settled law in several of the States sold has expired, even where the credit was ATTACH BEFORE EXPLI

that no action can be maintained, and no at- fraudulently procured, has not been respected

tachment sued out, in any case in which the in all of the American courts. HE CREDIT

In the State debt of the plaintiff has not matured, whether of New York the contrary rule is firmly settatute laws of many of the the defendant was or was not guilty of fraud tled.? The decisions in that State repudiate Erovisions by which a creiz in the procuration of the credit.4 Two im- the English doctrine that the law will not Lo attach before maturitas portant modifications of this doctrine of the substitute for the express contract to pay at ts of a debtor who trandze

common law have been established, both by a future day, an implied contract on the part credit for goods, or who sa English and American decisions. The first of the fraudulent purchaser to make present from the jurisdiction fibbie

is, that in any case in which the vendor has payment. They rest largely upon the prin

been fraudulently induced by the purchaser ciple announced in the leading case of Moses - of bindering, delaying si Eto accept an invalid or worthless note, bill, v. McPherlan, that assumpsit will lie in any creditors. The question ?

or other security for the price of the goods, case to recover money which the defendant

such security and the credit incidental whether a creditor parban

ex æquo et bono, ought not to retain in his thereto, may be ignored, and an action im- hands; and upon the further principle that mediately brought to recover the value of the one who has a right of action ex contractu, goods. These decisions proceed upon the and a right of action ex delicto growing out idea that the security being a nullity, the law of the same transaction, may waive the tort immediately implies an undertaking on the and sue

on the contract the implied con. part of the purchaser to make present pay

tract in this case, the express contract being ment of the price of the goods. The second treated as a nullity. The parties are premodification is, that if the purchaser has re

sumed to stand upon the rights and obligasold the goods before the expiration of the

tions resulting from a delivery of the goods. fraudulently procured credit and received the

The buyer cannot complain, because he is proceeds, the vendor may at once maintain

presumed to know that his fraud avoids the assumpsit against him, upon the ground that

express contract, and makes him by implicano title to the goods passed by reason of the

tion of law liable to pay immediately upon fraud, and that therefore the proceeds of the delivery of the goods. He cannot be perresale were so much money received by the

mitted to take advantage of his own wrong defendant to the use of the plaintiff, the

to set up a formal, technical, objection original vendor. It is perhaps not easy to against the vendor's recovery. The New distinguish such a case in principle from

York decisions have been followed in Kenthose in which the right to maintain an action

tucky, and perhaps in other States.' for the price is denied; but it must be ad

It remains to be considered whether the * Galloway v. Holmes, 1 Mich. 330; Emerson v.

common law rule which probibits an action of Steel Co., 100 Mich. 133; Jones y. Brown, 167 Pa. St.

assumpsit before the expiration of a fraudu19. Kellogg v. Turple, 93 II. 285; Schilling 6. Beane; lently procured credit, is affected by the 36 III. App. 613; Butler Printing Co. v. Reagan Paper Co. , 35 III. App. 152; Dellone v. Hull, 47 Md. 112;

7 Roth v. Palmer, 27 Barb. (N. Y.) 652; Wilson v. * Chitty on Bills, 196; Puckford v. Maxwell, 6 D. &

Force, 6 Johns. (N. Y. 110; Weigand v. Sichel, 3 Keyes E. 62; Stedman v. Gooch, 1 Esp. 3; Manfrs. Nat. Bank

(N. Y.), 120; Phillips v. Wortendyke, 31 Hun (N. Y.), 5. Gore, 15 Mass. 75; Montgomery v. Forbes, 148 Mass.

192; Reid v. Martin, 4 Hun (N. Y.), 590; Bach v. 249; Wilson v. Force, 6 Johns. (N. Y.) 109; Pierce v.

Tuch, 126 N. Y. 53; Crossman v. Rubber Co., (N. Y.);

27 N. E. Rep. 400; Eppens v. McGrath, 3 N. Y. Benjamin on Sales (Bennett's Am. Ed.), 445, note;

Supp. 213; White v. Harrison, 1 City Ct. Rep. (N. Y.) Bennett v. Francis, 2 Bos. & Pul. 554; Jones v. Hoar,

482. 5 Pick. (Mass.) 285; Mano v. Stowell, 3 Pinney (Wis.),

8 2 Burr, 1012; 1 W. Bl. 219. Er. 55; Musser r. Pri

9 Dietz v. Sutcliffe, 80 Ky. 650; Wood v. Garland, 58

N. H. 154, semble. An English nisi prius decision 23 III. 265; Creel v. Kirkham, 47 111. 344; Johnston v.

(De Symons v. Minch winch, 1 Esp. 430) establishes the same rule, but it must be considered to be overruled by the cases cited in note 3, ante.

for the price ; for szed as he fraud and afirms th: lor, however, may disain

sue in replevin to recorer es, or in trover to read eating them as having been cen possession of by the verted to his use. 1* ount to an election of the creat the contract 15 Page immaterial

, with respecte in them, whether the

Allen v. Ford, 19 Pick. (Mass.) 217.

Drake, 16 Johns. (N. Y.) 475.

xpired at the time when

But they are er disse

220; Barrett v. Koella, 5 Biss. Cir. Ct. (U. S.) 40; Wil.
let v. Willet, 3 Watts (Pa.), 277; Kellogg v. Turpie,

Salisbury, 61 III. 316.

lomonson, 3 Bos de Paix ont, (10th Am. Ed! *

Barn. & Cres, 59. ont. Id.; Ferguson r. ( strutt v. Smith, 10.425 es. & 17. 88.

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