« AnteriorContinuar »
defendant, all engaged at a common employment the men engaged in it, directing how, when and at the time of the accident, and the injury was where it should be done, represents in those matcaused by Tracy's negligence in giving a wrong ters the company itself. It was the duty, a consignal, defendant is not liable; and also that if tractual obligation, of the company to provide for Tracy was road-master of defendant, with author- the safety of the men at work in repairing the ity to employ and discharge hands, yet, unless cars. The company devolved that duty upon the plaintiff was injured by some negligence of Tracy person, who represented it, in conducting, orderin the employment of unfit men, or the providing ing and managing the work and men engaged in of unsafe appliances, the verdict must be for de- it." fendant." These declarations of law were re- “The foreman, in what he had to do for the fused.
company, did not represent himself; except as The court of appeals held that instruction num- the agent of the company, he had no interest in ber 2, given for plaintiff was erroneous and un- the repairs ordered. He did none of the manual warranted by any evidence in the case; and that labor in repairing the car, but, for the company, the instructions asked, by the defendant and set gave such orders and directions to the car repairout in the course of its opinion as refused, should ers, as he thought proper. That the foreman was have been given.
an inferior servant to Buck (who had a general The case at bar, in all its essential features and control and management of car repairs, anywhere principles, is identical with that of Moore v. The along the line of the road,) does not determine Wabash St. Louis & Pacific Ry. Co., recently de- that the foreman was 'a fellow servant of plaintiff. cided by this court and not reported. In that case Buck, the general superintendent of car rethis court, per Henry, C. J., had occasion to con- pairs, was not a fellow servant of plaintiff, and sider and review this whole question of fellow could not have been so regarded, if he, instead of
in Kestler had been present and given the order and that case must be accepted as decisive of this. That was an action to recover damages for an in- | obeying that order; and if by authority of the jury sustained by the plainntiff therein while in company, Kestler was placed there to do what the employ of that defendant as a car repairer. fell within tne line of Buck's duty, did he not, in The defendant in that case, it seems, kept a local
respect to that matter, stand in the same relation car shop at Stansbury (its general car shops being
to the company, as Buck himself, and if Buck had elsewhere and under a general superintendent | personally done what it is alleged Kestler did, thereof named Buck) and had in its employ a
could the company have successfully defended foreman cf car repairs, named Kestler, who had
the action, on the ground that Buck and plaintiff sole charge and control of hands employed to re
were fellow servants? pair cars.
"We recognize the principle that one may act At that shop, the plaintiff was employed as a
in the dual character of a representative of a mascar repairer and was ordered by said foreman to
ter and as a fellow servant. If it had been the repair the draw-head of one of the freight cars
duty of the foreman, in this case, to assist when of defendant standing on a side track, under a
necessary in the manual work of repairing the promise from said foreman that he would protect
cars, in addition of the other duties of superinhim from danger and injury while so employed
tending, controlling and directing such work, and in making said repairs, and prevent any train
he had gone under the car with plaintiff, to assist or engine from coming on said side track, while
in repairing the car; and by some negligent or s0 employed; but that, through the negligence
unskillful act, while so engaged, injured the plainand carelessness of said foreman, an engine of
tiff, the latter could not have recovered, defendant was .permitted to come in upon said
without proof of facts, which entitle one to retrack, and drive with great force against said
cover when injured, in consequence of the neglicar, under which said plaintiff was so at work,
gence or unskillfulness of a fellow servant. Unwhereby plaintiff's right arm was caught and
der the circumstances proved in this case, we crushed between said cars, etc.
think that plaintiff and Kestler were not fellow In treating of that case, the court use this lan
servants." guage: “If we may venture a general proposition In this case at bar, as has been seen, Tracy, on the subject, it is, that all are fellow servants, whose negligence and carelessness in giving sig. who are engaged in the prosecution of the same nals to the engineer, occasioned the injury in common work, under the direction and manage- question, was not at the time engaged or assisting ment of the master himself; or of some servant in the manual work of removing said wreck from placed by the master over them."
the road-bed and track of defendant; or in load"If a person employs another to perform a duty, ing said wrecked car upon said wrecking train; which he would have to discharge, if another nor does it appear to have been his duty, as roadwere not employed to do it for him, such person, master, su to do; but was engaged as such in suas to that service, stands in the master's stead perintending, directing, and controlling said lawith relation to other persons.”
borers, including plaintiff, in said work; and in “The person who had control of the work and that particular, was in the line of his duty, as road
master of the defendant; and under the authority sociation, so that proper caution would be likely to of said case of Moore v. Wabash St. L. & Pacific result.6 Ry. Co., supra, said plaintiff and Tracy were not
2. The master is required to provide proper and safe fellow servants; but, that Tracy, in the transac
machinery and appliances for his laborers, and he is
not allowed to delegate this duty to any agent or sertion in which the injury in question was received,
vant so as to relieve himself from responsibility.7 represented the master, and in that behalf was
3. After the master has provided proper appliances, acting as vice principal or "alter ego,” and that he must see that everything is kept in a safe condition, his negligence in that particular was the negligence and if he intrusts that duty to a servant, he will still of defendant, for which it is liable.
be liable for any injury to any servant caused by thə Various other questions were raised in the pro appliances being out of order.8 gress of the trial and suggested and argued by
4. The cases go further than the matter of proper
machinery and appliances. The master must provide briefs of counsel, which we have not overlooked,
proper assistance in the work and the proper watchbut we have not deemed them material to the
fulness, that no injury may be caused by other emproper disposition of the case and they will not ployees. The principal case treats of the latter liabilbe further noticed.
ity. He is liable to a brakesman for an injury caused The question we have considered was raised at by his failure to place enongh brakesmen on the train.9
Where a servant was engaged in repairing a car, it was every stage of the proceeding, first, by way of ob
the business of his principal to keep trains of cars jection to the reception of any evidence at the
from running against his car, and the principal was trial; second, by way of demurrer to plaintiff's held liable for the neglect of the boss car repairer in evidence, and third, by way of instructions and that respect.10 confessedly was and is the principal and control 5. Two servants of the same master are not fellowling question in the case.
servants when one acts in a superior capacity to the
other, and the master is liable for injuries to the suFor these reasons, the Court of Appeals erred in
bordinate caused by the carelessness or negligence of its said ruling, and its said judgment for that
the superior. At first it was held, that to hold the cause is reversed and the cause remanded to that master responsible, he must have intrusted this supercourt, with directions to enter up its judgment af ior servant with the actual control of all his business firming that of the circuit court. All concur.
-made him his alter ego.11 Then it was held, that this superior servant must have the power to employ
and discharge the inferior servant. But now it is conNOTE.—The first case reported, passing on the lia sidered sufficient that the inferior servant is under the bility of an employer for injuries to an employe, oc control and subject to the orders of the superior sercasioned by a co-employe, is the English case of Priest vant.12 Ohio and Kentucky from the first adopted this ley v. Fowler,l in 1837. This was followed in 1841 by modification of the rule.13 It will be noticed, as in the Murray v. So. Car. R. R.;- and in 1842 by the Massa
principal case, that the employer is exempted from chusetts case of Farwell v. Boston & W. R. R.,3 and
responsibility for the negligence of the superior serthen in 1850 by the English case of Hutchinson v. York vant, when, at the moment of the accident, the superN. & B. R. Co.4 These cases decided, that when an
ior is working with and assisting the inferior, and is employer bad provided proper appliances, he was not
not engaged in directing and supervising. responsible for an injury sustained by one of his em
6. The master is also responsible for injuries sus ployes caused by the carelessness or negligence of a
tained by a servant in executing work different from. co-employe. These decisions were almost universally
that for which he contracted, and which he was oradopted as the correct exposition of the law through
dered to execute by his employer or by a superior serout this country. But it was soon perceived that such
vant. 14 rulings often produced injnstice—that operators turned over the whole immediate care and supervis
6 Chicago & N. W. R. R. v. Miranda, 93 I11. 302. ion of their business to subordinates, and escaped all
7 Schultz v. Chicago, M. & St. P. R. R. 48 Wis. 375; Gilliability for injuries caused by such subordinates. The
more v. N. P. R. R. 9 Sawy. 558; Hough v. Railway Co., courts then proceeded, without reversing the rule, to 100 U. S. 213; Indiana Car Co. v. Parker, 100 Ind. 181; Cop qualify and differentiate it, till in some courts it is torn per v. Louisville, etc. R. R., 2 N. E. Rep. 749; Pantzar v. almost to shreds, and a coach and four can be driven
Tilly Foster M. Co., 99 N. Y. 369; Hannibal & St. J. R. R. through it. Without attempting to decide where the
v. Fox, 31 Kans. 586. weight of authority is, we will call attention to the va
8 Atchison, T. & S. F. R. R. v. Moore, 31 Kans. 197; Lew. rious modifications of the rule, which have been
is v. St. Louis & I. M. R. R. 59 Mo. 495; Tierney v. Minne.
& St. L. R. R. 33 Minn. 311; Cunningham v. U. P. Ry., 7 adopted by the different courts:
Pac. Rep. 795; Schultz v. C. M. & St. P. R. R., 48 Wis. 375; 1. When a servant is injured by the fault of another
Brabbits v. C. & N. W. R. R. 38 Wis. 289; Holden v. Fitchservant working in an essentially different department burg R. R. 129 Ma-s. 268; Ford v. Fitchburg R. R., 110 of the business, the master is responsible therefor.5 Mass. 240; Mullan v. Phila. & S. M. Co., 78 Penn. St. 25; The two servants are not considered to be fellow-ser King v. Ohio, etc. R. R. 14 Fed. Rep. 277, vants, unless they were actually co-operating at the 9 Booth v. Boston & A. R. R., 73 N. Y. 38; Flike v. Bos. time of the injury in the particular business in hand, ton & A. R. R. 53 N. Y.519.) or their usual duties brought them into habitual con
10 Hannibal & St. J. R. R. v. Fox, 31 kans. 586.
u Brothers v. Cartter, 52 Mo. 372; Malone v. Hathaway,
64 N. Y.5; Willis v. Oregon R. & N. Co., 11 Oreg. 257. 13 Mee. & W.1.
12 Cowles v. Richmond & D. R. R., 84 N. C. 309; Lalor y. 1 McMullan, 385.
Chicago, B. & Q. R. R.52 111. 401 ; Thompson v. Chicago, 34 Metc. 49.
etc. R. R. 4 McCrary, 629; Chicago, etc. R. R. v. Lund. 45 Exch. 343.
strom, 16 Neb. 254; Chicago, M. & St. P. R. R. v. Ross, 112 8 King v. Ohio, etc. R. CO., 14 Fed. Rep. 277; Chicago, U.S. 377; Gravelle v. Minn. & St. L. R. R., 3 McCrary, 352. M. & St. P. R. R. v. Ross, 112 U. S. 377; Garrahy v. K. C., 13 Berea Stone Co. v. Kraft, 31 Ohio St., 287; Louisville St. Joe & C. B. R. R., 25 Fed. Rep. 258; Nash. & C. R. R. v. & N. R. R. v. Collins, 2 Duvall, 114. Carroll, 6 Heisk. 347.
14 Lalor v. Chicago, B. & Q. R. R. supra.
It may be said, that the only case where the old rule has not been impugned, is where the servants are so far working together as to be practically co-operating, and to have opportunity to control or influence the conduct of each other, and have no superiority, one over the other. Since the rule grew up as judicial legislation, the courts are acting properly in retiring from a position where injustice may be done.
S. S. MERRILL.
Subsequently, but on the same day, the said Dorsey and wife executed another mortgage of the same property to Lewis F. Detrick of Baltimore City, in which is a recital mentioning the existence of the first mortgage, and thus recognizing its priority. On the 9th day of November, 1876, Dorsey and wife executed a mortgage of the same property to the Maryland Fertilizing & Manufacturing Company. On the 14th day of May, 1878, the first mentioned mortgage was assigned by the Central National Bank to the said Henry Bussard, he having paid the notes for which this mortgage was intended as security. The said Henry Bussard beld another mortgage executed by John J. Molesworth of Frederick county, and recorded in the clerk's office of said county. As shown by the testimony of Molesworth, the money secured by this mortgage was paid on or about the 17th of May, 1878, to the mortgagee at his house
EQUITY-MISTAKE-REFORMATION OF INSTRUMENT_OVERWHELMING PROOFPAROL EVIDENCE.
JAMES A. C. BOND V. FANNIE V. E. DORSEY.
? in Carroll county, at which time he promised to
Maryland Court of Appeals, May 27, 1886. 1. Equity has jurisdiction to entertain a suit to reform an instrument (here a release of a mortgage) which has been dated, drafted, recorded, etc., erroneously by mistake. But the evidence of mistake must be "clear and overwhelming,” or at least "satisfactory.”
2. What is meant by "overwhelming," "satisfactory," "clear," etc., explained with reference to decisions of various States.
3. Parol evidence of mistake is admissible in support of a suit to reform a mistake in an instrument. Record evidence is not always required.
4. Parol evidence may be received to show mistake in according release of a mortgage, against subsequent mortgagees, although not against bona fide purchasers for value.
Appeal from the Circuit Court for Carroll county, in equity. Reversed.
The facts are stated in the opinion.
Argued before Alvey, Ch. J., and Robinson, Ritchie, Irving, Miller and Yellott, JJ.
James A. C. Bond, appellant, pro se; Messrs. Charles B. Roberts, James Mc Sherry and W. A. McKellip, for appellees.
YELLOTT, J., delivered the opinion of the court.
This is an appeal from a decre of the Circuit Court for Carroll county sitting in equity. The bill of complaint was filed by the administrator of Henry Bussard; and it is alleged in said bill and shown by the proof in the cause that William H. B. Dorsey, being indebted to the Central National Bank of Frederick City on two promissory notes, with the said Henry Bussard as one of his indorsers, did on the second day of October, 1876, execute a mortgage to said bank as security for the liquidation of said indebtedness.
The land described in said mortgage consists of a tract of about forty acres; of which said tract eight acres and a fraction are situate in Frederick county, and the remaining portion in Carroll county. This land belonged to the appellee, Fanpie V. E. Dorsey, who was the wife of the said William H. B. Dorsey, and who joined with her husband in the execution of the mortgage.
enter a release on the record in Frederick county. On the 21st of May, Henry Bussard went to Frederick City; and it is contended by the plaintiff's solicitor that he went for the purpose of releasing the mortgage executed by Molesworth. The mortgage assigned to him by the bank having been recorded in Frederick county, on the 27th of May, 1878, soon after his return from Frederick, he sent the same mortgage, with the assignment thereon, to the clerk of the Circuit Court for Carroll county, to be there recorded. It was subsequently discovered that while on his visit to Frederick City he had not released the mortgage from Molesworth, but had released the mortgage executed by Dorsey and wife to the bank, and assigned to him, which mortgage had not then been and has never since been paid. It is contended by the appellant, that this release was made by mistake; and this question must now be determined by the proof in the cause.
The evidence adduced on the part of the plaintiff seems to be strong enough to remove all reasonable doubt with reference to the occurrence of a mistake in making the entry of a release on the record. It is not to be presumed that Mr. Bus. sard intended to release a mortgage which had never been paid. And it is difficult to suppose that, after executing a release in Frederick county, he would subsequently send the same mortgage to Carroll county to be there recorded. But it is easy to believe that he intended to release the mortgage from Molesworth, which had been paid, and which was afterwards released by his administrator.
Such surmises would, of course, avail nothing unless supported by proof. But the testimony of witnesses, who are not contradicted, is so strong as to show clearly that Mr. Bussard did not intend to release the mortgage assigned to him by the bank. One of the witnesses says that in March, 1880, the appellee, Fannie V. E. Dorsey, said to Henry Bussard in her presence, that it was a mistake, and offered to take bim to Frederick in her
carriage and have the mistake rectified. Another mistake," Miner v. Hess, 47 Ill. 170; Heavenwitness says, that she heard Mr. Bussard tell Mr. ridge v. Mondy, 49 Ind. 434; Burgin v. Geberson, Ross, his attorney, that he had intended to re 26 N. J. Eq. 72. lease the mortgage from Molesworth, and had ex And in other courts "satisfactory evidence" of ecuted the release of the other mortgage by mis the mistake is sufficient, as indeed it must be suftake.
ficient in all cases where a matı rial fact is sought These two witnesses are the daughters of Henry to be established by proof; for if it were otherBussard, and may be interested in his estate; but wise, the evidence would not be satisfactory. As they are of high respectability; and their testi Chief Justice Shaw said, in a case nearly resemmony, so far from being contradicted, is corrob bling the one now under consideration.orated by that of otber persons who have no in “The discharge of a mortgage on the margin of terest in the matters in controversy. The mother the record of the mortgage deed is strictly an act of William H. B. Dorsey, says that she heard the in pais of wbich the register is the witness, and is appellee offer to take Mr. Bussard in her carriage declared by the statute to have the force and efto Frederick, and he said he was too infirm to go,
fect of a release duly acknowledged and recorded. and expressed his apprehension that he would
But a release acknowled and recorded would not never be able to correct the release. Mr. Bussard be conclusive, even if delivered, if no money was died very soon afterwards at the age of eighty- | paid, and other facts proved showing that it was two years. This testimony is strongly corrobor
delivered by accident or mistake. I am of opinated by that of Charles W. Ross, who says that
ion it is such a case of accident and mistake in the Mr. Busard claimed that the release made by
course of conveyancing, as would be relieved bim of the Central Bank mortgage, which had
against in a court of equity upon satisfactory proof been assigned to him, was an error; that he in
of such mistake or accident.” Bruce v. Bonney, tended to release a mortgage given him by a man
12 Gray, 111. of the name of Molesworth.” Mrs. Dorsey, the
It has been contended on the part of the apappellee, was present at this conversation.
pellee that, "as against the subsequent mortThe only testimony offered by the defendant
gagees, parol evidence of an alleged mistake is was that of Thomas Gorsuch, formerly the clerk
inadmissible, and no decree could be passed of the Circuit Court for Frederick county. He
thereon affecting their rights." says be bas no recollection of the transaction, but
The case cited as authorities do not support this does not think that such a mistake could have oc
proposition. Those were cases in which the legal curred, as it was an assigned mortgage.
existence of the mortgages was not disputed, but But wben we see by the evidence that the mort
an attempt was made to vary the apparent meangage was assigned by the bank on the 14th of May,
ing of the instruments of writing and give them a 1878, and was first recorded in Frederick County; different effect from that warranted by the lanthat on the 21st of May, 1878, Mr. Bussard went to
guage therein contained. But here the very exisFrederick and on the 27th of the same month sent
tence of a valid release is disputed.
It is contended that the release, having been the conclusions is obvious that he must have spoken
made by mistake, is a nullity. In relation to this to the clerk about the mortgage; and during this
question the authorities tend strongly in one diconversation the mistake may, as the result of age rection. The doctrine thus established is that “a and infirmity, have occurred. But Mr. Gorsuch's
subsequent mortgagee, whose rights existed at memory has retained nothing in relation to the the time of the release, cannot object to the prior transaction, and therefore nothing is establishen mortgagee being restored to his rights. Of course by his testimony.
the mortgage cannot be restored as against one. When it has been proven that a mistake of this who has in good faith purchased the property afnature has occurred, equity will intervene and ter the cancellation, or has advanced money upon grant relief. But it has been said in some of the it upon the faith of a clear record title.” 2 Jones, cases that the proof must be clear and overwhelm Mortgages, $ 967; Trenton Banking Co. v. Wooding. Beard v. Hubble, 9 Gill, 430; Groff v. Rohr ruff, 1 Green's Ch. (N. J.) 117; Fassett v. Smith, er, 35 Md. 327; Mendenhall v. Steckel, 47 Md. 23 N. Y. 252. 454.
The authorities remove all doubt in regard to What is intended to be understood by the very the admissibility of parol evidence to prove a misstrong expression "overwhelming proof” is ex take in regard to the execution of an instrument plained by other authorities. It cannot be dis of writing. Busby v. Littlefield, 31 N. H. 193; puted that proof sufficint to remove every doubt Canedy v. Marcy, 13 Gray, 373; McKay v. Shipfrom the mind is, in effect, overwhelming, because son, 6 Ired. (N. C.) 452. it establishes the part sought to be proved; and The evidence in this record is such as to leave no proof can usefully accomplish more than this no reasonable doubt on the mind of anyone who result. In some of the States, the expressions used carefully examines, in that Henry Busard did not by the courts are not so strong; and it is held that intend to release the mortgage which had never "the evidence of the mistake must be clear and been paid; and that the release was the result of satisfactory,leaving but little, if any, doubt of the a mistake. Such fact being established, it follows
the mortgage to Carroll County to be recorded, ten
that the plaintiff was entitled to the relief asked for in the bill of complaint; and the court below erred in refusing to grant such relief. The order dismissing the bill should therefore be reversed and the cause remanded, so that a decree may be passed in conformity with what has been said in this opinion.
Order reversed and cause remanded, with costs to the appellant.
out notice are concerned, the powers of courts of equity to remedy all the mischievous consequences of a mistake are plenary and sufficient. The proof however must be plain and entirely satisfactory, because the rule is that the written paper is presumed to contain the meaning of the parties, and the onus is, therefore laid with much emphasis upon him who seeks to overturn it. It must stand until the contrary is established beyond all reasonable controversy. 8 We take it that what is said in the principal case, and the cases therein cited about“overwhelming proof” means no more than this; that the preponderance must be very decided, and that one mistake having already been made, the court must take very good care that it shall not be followed by another. In a Vermont case the court says, that the proof shall be strong and of a conclusive character,o in Missouri the rule is stated to be, that when the mind of a judge is entirely convinced upon any question of fact or law he is bound to act upon his conviction.10 The Supreme Court of Illinois says that a court of chancery “will not reform a written instrument except upon clear and satisfactory proof. 11 In Pennsylvania it is said that relief will not be granted, unless there is a plain mistake made out by satisfactory proofs, and that the evidence must not be loose, equivocal, or contradictory; open to doubt or to opposing presumptions.12 In Georgia the court says, that this power of courts of equity should be exercised sparingly, wiih great caution and only upon the clearest proof of the intention of the parties.13 And it all amounts to this; that the instrument shows distinctly what appears to be intention of the parties, the party seeking to overthrow it, has before him a double labor; and must accomplish it by proportionate proof. He must show, not only that the parties did not mean what they said, but also, and with much precision, what they did mean.
And this may, and generally must, do by parol evidence.14 And in no event can he be permitted to overthrow an existing contract unless he can show either fraud or mistake, mere misunderstanding of the facts will not do,15 nor can be accomplish his object if it appears that the mistake was the result of his own negligence.16
(Ed. C. L. J.]
Note.-Mistake is one of the original subjects of equity jurisdiction. In case of mistakes affecting the recording or registration of legal instruments, it has been exercised under a great variety of circumstances. It is well settled that if in the recording of a deed, such a mistake occurs as prevents the recording or registration of the instrument operating as constructive notice of the transfer and all its material incidents, the record is unavailing against subsequent purchasers or mortgagees. Thus the registry of a mortgage which does not state the name of the mortgagee is not constructive notice to subsequent purchasers. And where a mortgage to secure a debt of $3.000 was registered as for a debt of $300, it was available against a subsequent purchaser only to the amount of the latter sum. It is incumbent upon the parties to the instrument to see that no mistake is made, they must in such case bear the consequences, not the subsequent purchaser, who is required to do no more than examine the record, and is authorized to take as correct what he finds there. And if a record shows the name of a person as grantor, who is not the grantor, the record is not notice. The rule is that a record is constructive notice of that of which its perusal would be actual notice. And it is said that if part of the deed, or defeasance accompanying it, is omitted, and the instrument appears on the record as an absolute deed, it will be held to be good for nothing as such, because it is in fact no conveyance, and it is equally worthless as a mortgage, because it does not appear on the record to be a mortgage." 3 qucere.
This last dictum may well be questioned. The deed thus recorded, without its defeasance, would be good for nothing in favor of the grantee and against its grantor, for both had full actual notice of the defeasance and its terms, but it would surely be good in favor of a bona fide purchaser from the grantee, without notice,actual or constructive of the infirmity of the grantee's title thus standing fair upon the record.6
It is abundantly manifest therefore, that when the rights of third persons have supervened in consequence of the recording or registration of a deed, and such third persons are innocent bona fide purchasers without notice actual or constructive, and for a valuable consideration, the mischief caused by a mistake is irremediable in law or equity.
Unless this is the case, and provided no such privileged persons as bona fide subsequent purchasers with
7 Hearne v. Marine, etc. Co. 20 Wall. 490; lvinson V. Hutton, 98 U. S. 79.
81 Story Eq. Jur. (9th ed.) 152; Gillespie v. Moon, 2
9 Preston v. Whitcomb, 17 Vt. 183.
12 Edmonds' Appeal, 59 Penn, St. 220; See also, Beard
13 Reese v. Wyman, 9 Ga. 430.
14 Hunt v. Rousmanier, 8 Wheat. 174; 1 Story Eq. Jur.
15 Story v. Conger, 36 N. Y. 673.
1 Peck v. Mallam, 10 N. Y. 509.
5 Brown v. Dean, 3 Wend. 208; James v. Morey, 2 Cow. en, 246; Dey v. Dunham, 2 Johns. Ch. 182; Friedley v. Hamilton, 17 Serg. & R. 70; Jaques v. Weeks, 7 Watts, 261, 287: Edwards v. Turnbull, 50 Penn. St. 509; Hendrickson's Appeal, 24 Penn. St. 363.
6 Cogan v. Cook, 2:2 Minn. 137; See also, Fletcher v. Butten, 4 N. Y. 396; Schreck v. Pierce, 3 lowa, 350; Conway v, Case, 22 111. 127; Wilson v. Getty, 57 Penn. St. 266.