« AnteriorContinuar »
court. In Livingston v. MoDonald, 21 Iowa, 160, the the sale Jones wants to purchase, and he goes to his subject we have been considering, as applied to agri- attorney, and his attorney goes to the Code to see if cultural lands, was largely discussed by Dillon, J., and the sale cuts off the mortgagee. What shall his attorcertain rules deduced from the civil law were adopted ney advise? by the court, which may not be in strict accord with He turns back to section 1539, and finds that the the views herein expressed. In the case just cited it final judgment is to determine whether the mortgawas said: “And in so holding we do not lay down any gee's interest shall be reserved or passed. But he says rule applicable to town or city property.” The other "I will look at section 1577, and that will set me right." cases are Ellis v. Iowa City, 29 Iowa, 229; Simpson v. And he finds himself there referred to section 1557. Keokuk, 34 id. 568; Russell v. Burlington, 30 id. 266; Turning then to section 1557 he finds that the judg. and Bartle v. City of Des Moines, 38 id. 414. In none ment is a bar except as to the persons whose rights are of these cases was the question under consideration in left unaffected by the final judgment. this case either presented or determined. Freberg v. It is like the old school-book game where the chilCity of Davenport. Opinion by Seevers, J.
dren write on the fly-leaf[Decided March 20, 1884.]
“If my name you wish to see, WILL-REPUGNANT CONDITION BIRTH OF CHILD
Look on page seventy-three." REVOKES.- Where property is devised in fee simple to
Ou looking on page seventy-three the searcher finds widow, and words are added directing the disposition
further and further references, until he gives up the of what remains at her death, such words, if preca
chase in disgust. So far as can be deduced from the tory, do not affect her title, and if intended to impose Code, the purchaser buys a "pig in a poke.” The final a condition, are void as repugnant thereto. See Rona judgment decides whether the property is sold subjec: v. Meier, 47 Ivwa, 607, and cases cited; Benkert v. Ja- to the mortgage or whether it is cut off. And there is coby, 36 id. 273; Williams v. Allison, 33 id. 278. As to no provisiou for enlightening the purchaser. the effect of such a condition in a deed, see Case v. This is equally so if the mortgagee is not a party, Dwire, 15 N. W. Rep. 265. Under this rule of the law though it may possibly be said that if a purchaser bugs the widow acquires by the terms of the will all the when there is an outstanding mortgage on the whole property of the testator, without limitation or condi. property, and the mortgagee is not a party, he buys tion The birth of a child of a testator operates as a
subject to the mortgage anyway. revocation of a will before made. Negus v. Negus, 46
But when the creditor is a party, is not the purIowa, 487; Carey v. Baughn, 36 id. 540; McCullum v.
chaser subject only to the "mercy of the court?" McKenzie, 26 id. 510; Milburn v. Milburn, 14 N. W.
Yours truly, Rep. 204. An interest contingent upon the validity of
SUBSCRIBER. the will is sufficient grouud for an action to defeat the
PORT RICHMOND, S. I., July 17, 1884. will. Alden v. Johnson. Opinion by Beck, J. [Decided March 20, 1884.]
The subject of codification is now being more widely CORRESPONDENCE.
discussed than ever before. Mr. Field and Mr. Throop
can no longer lay claim to the exclusive championship MR. FOWLER'S PAPERS.
of codification. Able articles appear in the last numEditor of the Albany Law Journal:
ber of the American Law Review by Harrington Putnam Is not Mr. R. L. Fowler going to continue and com- and in the Kentucky Law Reporter by Mr. Reinecke, plete his valuable “Observations on the Particular while a pamphlet entitled “Codification in the State Jurisprudence of New York,” the beginning of which of New York,” which may fairly lay clalm to the digbas been published in your columns? I, for one, have nity of being a philosophical treatise on this important been for a long time hoping for such continuation. subject of jurisprudence, has just been issued by Yours, etc.,
Weed, Parsons & Co., of Albany. The author, Mr. GENEVA, N. Y., July 16, 1884.
A. P. ROSE. Robert Ludlow Fowler, a member of the New York
bar, has already earned a reputation, not only as a PARTITION SALE OF MORTGAGED PREMISES.
practical lawyer, but also as one who, although in the Editor of the Albany Law Journal :
junior ranks of the profession (for a lawyer is profesWill you kindly ask Mr. Throop for me (and to sioually young until he is forty), has already paid the oblige many members of the profession who profess to debt he “ owes to his profession" by his numerous and be equally as stupid as I am) how we are to advise our remarkably able contributions to legal literature which clients in regard to bidding at a partition sale-where have appeared from time to time in the ALBANY LAW there is a mortgage, for instance, on the whole prop- JOURNAL. The lawyer who does not read Mr. Fowerty? The answer to the question will probably be ler's production cannot be said to have critically and very simple for one who can at once put his eye upon thoroughly entered into the subject of codification, the section of the Code which will answer it, but I can notwithstanding all that has been said and written not.
about it heretofore.- New York Daily Transcript. My proposition arises thus:
Mr. Irving Browne, the editor of the A LBANY LAW Brown, Jones, Smith and Robinson own a plot of JOURNAL, a strong advocate for codification, pithily land which they bought of Doe. Doe had given a says that“No lawyer questions the authority of a statmortgage on the plot to his friend Roe, and sold to ute in court. The only way we can get rid of it is by legBrown, Jones, Smith and Robinson, subject to tbe islative repeal or modificatiou. No matter how small a mortgage. Then Jones brought a partition suit, and majority has passed it. But every decision, especially made his co-owners and Roe (the mortgagee) parties.
every decision pronounced by a divided court, can al
ways be assailed in court by a lawyer with some prosThis he may do. Code, $ 1539.
pect of success; or at all events it furnishes a ground Then he proceeds regularly to an interlocutory judg- of advice to his client to take his chances of reversing ment, and therein he gets an adjudication that the the uneasily settled doctrine."-New York Daily Tranmortgage exists, how much is due on it, etc. $ 1546.
script. -The ALBANY LAW JOURNAL says that Ohio And it appearing that it cannot be partitioned, he di
is the most grasping State in the Union. It would aprects by the interlocutory judgment that it be sold.
pear that her grasp this year has not been strong
enough to hold a candidate for the presidency or to But the question as to liens ($ 1561) does not affect this retain the contract for the publication of its law remortgage. So far the case has run smoothly, but at ports. ---Cincinnati Law Bulletin.
ing, filled with venom, and yet, your honor, though The Albany Law Journal.
there seemed so many of them, all of them put to
gether would not have made up a peck!” This ALBANY, AUGUST 2, 1884.
strikes us as more savage than “neat.” Possibly
Judge Peck deserved it, but if we had been in his CURRENT TOPICS.
place we should have suggested that Judge Grover
had been taking his “bitters” too strong that mornR. DAVID DUDLEY FIELD, in his 80th year ing. Another legal story is going the newspaper
has published a collection in three volumes, of rounds, and we reproduce it: “On one of the many his speeches, arguments and miscellaneous papers. official excursions made by boat to Fortress Monroe The publication was edited by Mr. A. P. Sprague, and Chesapeake bay, Chief Justice Waite of the formerly one of the editors of this journal, up to the Supreme Court, Judge Hall of North Carolina, and time of his death. This collection will be of great other dignitaries of the bench were participants. interest to statesmen, lawyers and legal reformers. When the government steamer had got fairly out of The arguments are all on questions of the greatest the Potomac and into the Atlantic, the sea was very public importance, and the papers on codification rough and the vessel pitched fearfully. Judge Hall are very interesting historically and argumentatively.
was attacked violently with seasickness. As he was There are several papers of more general interest, retching over the side of the vessel and moaning well illustrating the author's keen powers of humor aloud in his agony, the chief justice stepped gently and sarcasm, and exhibiting a remarkably felicitous to his side and laying a soothing hand on his style. Some addresses in French and Italian show shoulder said: “My dear Hall! can I do any thing Mr. Field's cosmopolitan experience and powers.
for you? just suggest what you wish.' 'I wish, He is not however one of those cosmopolitans who
said the seasick judge, ‘your honor would overrule are " at home everywhere except in their own
this motion!” It is said that Henry Ward Beecher country." His long and useful life, although he has
was once crossing the ocean in company with a seadone much for the world at large, has mainly been sick clerical friend, who complained bitterly of the spent in the service — the unpaid service - of his voyage. To whom Bro. Beecher responded, “why, own country. We venture to say that the laws of you know in grace we are always a-bounding.” this country owe more to him than to any other
A clerical friend of ours, in crossing the English man now living - more than to any who has ever channel, remarked to a sick friend, “This is a nasty lived, with one or two exceptions. We live too
bit of water." His friend, sadly gazing over the Dear Mr. Field in time and space fully to appreciate side of the vessel, replied, “It ought to be by this what our jurisprudence owes him. Other nations
time." now have a better idea of his labors than we have, and future ages will be more apt to rate him at his
We must add to our collection of recent amusing true value than his contemporaries do. Known of English cases the following from the Pall Mall all men, a visitor to all climes, the author of much
Gazette: “What is a kiss? The question can only of the ruling law of nearly all English-speaking be answered by experience; solvitur osculando. But communities, he is certainly the most influential of it is easy after a decision in the Lambeth county living lawyers, as even those who do not like him court yesterday to say what a kiss is not. It is not nor agree with him must admit. We recommend legal 'consideration.' A surgeon in Lambeth kissed these volumes to all lawyers as a magazine of great
a workingman's wife; the husband valued the kiss argument and deep learning, with much more of in- at five pounds, and the surgeon gave an I 0 U for terest to our generation than any similar publication that amount.
A month after date an action was for many years.
brought on this document, but the judge promptly
ruled there was no consideration and gave a verdict We recently referred to some newspaper stories
for the defendant. Perhaps the lady was in court, of Judge Drummond. We have since come across and the judge may have been influenced by that. one of our own Judge Grover, which we found in For even the poets admit that there are “kisses and "Harpers," whose story department, by the way, is kisses;' the interesting question is whether yestermuch better than formerly, and contains frequent day's judgment was meant to lay down a general good stories, of lawyers, not drawn from Joe Miller. principle, or whether every case must be decided The present story runs thus: “A very neat mot is op its merits.” Speaking of kissing, we feel bound credited to Judge Grover, in a tilt at the bar with to warn all lawyers against reading the case of RobJudge Peck. The latter had delivered a particu- inson v. Musser, 78 Mo. 153. No wonder that all that larly rasping speech, in which the former felt com- the court could say by way of opinion was, “ Volenti pelled to reply in kind. “You honor,' he said, 'it non fit injuria.” We are surprised that our friend rained last night, and this morning, when I took Skinker reported this case. If he lived down this my course across the fields, at almost every step I way, Anthony Comstock would make his life a came upon some slimy, venomous creature that had
burden to him. issued from its hiding-place. Snails, toads, frogs, lizards, worms, snakes, vipers, adders — every de- The Commercial Advertiser has a very sensible arscription of loathsome reptile was to be seen, crawl- ticle on Mr. Meigs' proposal to relieve the Federal
VOL. 30-No. 5.
Supreme Court by cutting off appeals. It so well We say again for the twentieth time, that the peoexpresses our own views that we reproduce a con- ple of this country are entitled to all the litigation siderable portion of it: “One of the principal rea- that they want and are willing to pay for. The sons for the establishment of the Federal judiciary convenience of courts is not to be consulted. was that courts might be provided under national | Let the people have more courts and more judges, authority in which citizens of different States could if the present force is not enough. Courts are made settle their controversies, and not be forced into for the people, not the people for the courts. the tribunals of the State of one of the litigants. The reasons which existed at the time the Constitu
Mr. Austin Abbott is of the same way of thinktion was adopted for providing such a tribunal ex-ing. He says in the New York Daily Register : ist in all their force still. Local prejudice is just as
“ The radical fault of this proposal is the same strong, and the influence of it on local tribunals which has marked many other suggestions for the just as powerful as in 1787. The prejudice which
same purpose, viz., it is a proposal how not to do was sought to be guarded against is not a thing of professional business, not how to do it. The bar the past, and he who asserts that it is has no prac- do not wish their facilities for business to be dimintical knowledge of the subject. To-day if a city in ished. The country do not wish it. Clients deGeorgia or Tennessee desires to repudiate its indebt
mand more, not less facilities. No proposal to shut edness, or a town in New York attempts to follow
the doors of the courts in order to relieve the the pernicious example, the courts of neither Georgia, bench will be acceptable. The business is not too Tennessee nor New York can be relied upon to do large, and it is going to be larger. It is going to justice; and but for the Federal courts, each of these
increase in a sort of a geometrical ratio. If the States might perpetrate a great fraud. In fact they courts cannot do it and do it well, the country do do perpetrate it on their own citizens who are un
not look for a cure in the direction of discouraging lucky enough to hold the repudiated securities; but
their business, nor in any plan for diminishing the the Federal courts say to them “You shall not do it facilities for its transaction. The facilities must be to aliens or citizens of other States.' It is quite use
made adequate, and the bar should see to it that less to theorize on the subject. The inexorable this is done with reasonable promptitude and liberlogic of events stares in the face the writer who
ality." would attempt to argue that the jurisdiction is not still beneficial and still necessary. When our own State allows negotiable paper to be put on the
NOTES OF CASES. market by towns, and then allows the towns to evade payment by technicalities, it is not necessary
N First National Bank of Flora v. Clark, 61 Md. to go further and show the wide range of rascalities
400, it was held that where a telegram is sent which fear of the Federal jurisdiction alone prevents authorizing a draft to be drawn, and another teleWhen State judges are elected by the people for
gram is afterward sent countermanding the authorshort terms and paid the wages of hotel clerks or
ity previously given, and on the faith of the first bar -tenders, the people of the locality where they telegram, which alone was exhibited to the cashier exercise their power can not complain because they of the bank, a draft was discounted by the bank, make such judges possible ; but surely residents in
the drawee cannot be held liable as acceptor, nor other States will not be willing to be turned over to for a breach of promise in not accepting. The court their tender mercies. Instead of shortening or de
said: “Upon these facts two questions arise, and first, creasing the jurisdiction of the Federal courts, the
is the appellee liable as acceptor? That one may be courts themselves should be increased in number
liable as acceptor of a bill, drawn in pursuance of so that the full benefit of the constitutional right
a written promise to accept, and upon the faith of should be given to the people. It is one of the
which the holder has advanced money, is well setfunctions for which the United States Government
tled in this State. Lewis v. Kramer, 4 Md. 265; was created, that it should furnish tribunals for the
Franklin Bank of Baltimore v. Lynch, 52 id. 270; litigations of the people of the several States; and
S. C., 36 Am. Rep. 375. In such cases however it it would fail in a fundamental requirement of its
is necessary that the bill should be drawn within a Constitution if it ceased to do so. It is true that
reasonable time after the promise is made, for otherthe jury in a Federal court is composed of citizens
wise the drawer will be presumed to have declined of the State in which it exists, but it is not so much to act on the authority thus given, and the drawees prejudice of juries that is sought to be guarded will not be construed to have intended an indefiagainst as prejudice of judges; and any person who
nite liability. And second, the promise must so will examine the reports of the United States Courts describe the bill that there can be no doubt of its will see that although the judges of those tribunals application to it. This was so expressly held in are citizens of States, yet the method of their
Coolidge v. Payson, 2 Wheat. 66, and held too upon selection and the fact that there is an appeal to the
the authority of Pillans v. Van Mierop, 3 Burr. Supreme Court renders them practically independ-1663; Pierson v. Dunlap, 7 Cowp. 571, and Mason ent of local prejudices, and loyally deferential to
v. Hunt, 2 Doug. 296. These cases were, it is the decisions of the courts of the Federal system.” | true, somewhat questioned in Johnson v. Collings, 1
East, 98, and Clarke v. Cock, 4 id. 57, Lord Kenyon the authority to draw implies a promise to accept saying that the court had in these cases carried 'the and pay the draft, and this promise inures to the doctrine of implied acceptances to the utmost verge benefit of any bona fide holder who takes it on the of the law; and he doubted whether it did not faith of the promise. It is a liability therefore even go beyond the proper boundary.' And when founded on agreement constituting a valid contract the question arose in Bank of Ireland v. Archer, 11 between the promisor and promisee, inuring to the M. & W. 382, decided in, 1843, on a parol promise benefit of a third party who has been induced to to accept, Baron Park held such promise did not advance money on the faith of the agreement. The amount to an acceptance, although the bill was dis- liability in such cases being founded on the promcounted for the drawer on the faith of the promise. ise to accept and pay the draft, this suit cannot be The question was set at rest in England by statute, maintained unless there was a promise on the part 19 and 20 Vict., ch. 97, $ 6, which provided that no of appellee to accept it at the time the draft in conone should be bound as acceptor unless the accept- troversy was drawn.” See note, 36 Am. Rep. 380; ance be written on the bill and signed by the ac- Whilden v. Merchants and Planters' Nat. Bk., 64 Ala. ceptor, or by some one authorized by him. In this 1; S. C., 38 Am. Rep. 1; Brinkman v. Hunter, 72 country however the courts have generally held to Mo. 172; 8. C., 39 Am. Rep. 492. the doctrine of implied acceptance, as laid down by the Supreme Court in Coolidge v. Payson, being careful at the same time not to enlarge it, for the In Donahue v. Dreccler, Kentucky Court of Appeals, reason that such acceptances must necessarily affect June 3, 1884, 6 Ky. L. J. 14, A. sued B. for assault the credit of bills, and impair their commercial and battery but dismissed the suit settled, and he value. And accordingly in Franklin Bank of Balti- having died shortly afterward, his widow brought more r. Lynch, 52 MD. 280; S. C., 36 Am. Rep. 375, suit under the statute against B, claiming that her where the drawer was authorized by a telegram re- husband had died of the injuries inflicted by B. ceived late on Saturday to draw for $750, and in Held, that the former suit for assault and battery was pursuance of which a sight draft for $750 was no bar to her action. The court said: “The drawn by him on the Monday following, this draft suit for assault and battery could not have was discounted by the plaintiff on the faith of the survived to the personal representative, for telegram thus received by the drawer, and it was the statute says it shall die with the perheld the defendant was not liable as acceptor, be- son injured or injurying. It was a personal cause the telegram did not limit or specify the action purely for the bodily injury, not for pain, terms of the draft, nor designate the time for which suffering and loss of service to his wife and children it was to be drawn.' Now if the American doc- after the injury and before death, and the compentrine of implied acceptances is to be adhered to all, sation which he had the right to was extinguished it does seem to me, with great deference, that by his death or the setti ent which made. But Lynch's case falls directly within it. The authority his right of action for the bodily injury from the to draw was unqualified; the telegram was received assault and battery is wholly distinct from the aclate on Saturday, and the draft was drawn on Monday tion which the widow and minor children may bave following for the precise amount named in the tele- for reparation of the injury resulting to them from gram. Upon these facts, and in the absence of all the death of the injured. This statute creates a new proof to the contrary, there was, it seems to me, grievance, a new cause of action, in which neither such a connection between the authority given and the deceased nor his estate has any interest, and for the draft drawn as to leave no doubt of its being the which his administrator could not sue. It is based identical draft drawn in pursuance of the telegram. upon the wrong to the wife and children by deprivBut be this as it may, the decision in Lynch's case ing them of their natural support and protection is binding upon us, and being so, it is clear the which the law gives them in the husband and father. appellee in this case cannot be held liable as ac- The injury is to them and their rights. They have ceptor. We come now to the second question: Is the exclusive right of action under the statute and be liable for a breach of promise? And here the are entitled personally to the result of any judgment courts in this country have drawn a distinction be- that may be recovered. This is a highly penal tween the liability of one as acceptor, and his lia- statute passed to protect widows and orphans from bility on a promise to accept. And they have held pecuniary distress resulting from the acts described that if the promise to accept, or authority to draw, in the statute, and to prevent the perpetration of does not designate and specify with sufficient cer- such acts by awarding vindictive damages in additainty the bill to be drawn, and the party sued be tion to or regardless of the punishment which may be not therefore liable as acceptor, he may be held lia-inflicted by the criminal law. Whitford v. Panama ble on his promise to accept. Whether this is a dis. R. Co., 25 Hun, 627; 23 N. Y. 469." But in Littictinction without a difference, as has been intimated wood v. Mayor, 89 N. Y. 24; S. C., 42 Am. Rep. 271, by some judges, it is supported by Boyce v. Edwards, it was held that a judgment for damages for per4 Pet. 111; Russell v. Wiggin, 2 Story, 213; Car- sonal injury by the wrongful act or negligence of negie v. Morrison, 2 Met. 381, and approved by this another, is a bar to an action under the statute, by court in Lynch's case, 52 Md. 270; S. C., 36 Am. the personal representatives, for damages by reason Rep. 375. These cases rest upon the principle that of the plaintiff's subsequent death.
In Messenger v. Dennie, Massachusetts Supreme force, payment or release would be presumed.(1) This Court, May, 1884, a boy eight or nine years old, rid- principle has since then become established by the ing on the runners of a sleigh in a public street, period being fixed at twenty years.(2)
courts both of the United States and of England, the let go his hold, and was run over by the defend
“These presumptions to be drawn by the courts in ant's sleigh following. Held, that he had no cause the case of stale demands," says Chancellor Kent, of action. The court said: “There was no evi- " are founded in substantial justice and the clearest dence of due care on the part of the plaintiff. He policy. If the party having knowledge of his rights voluntarily and thoughtlessly put himself in a posi- will sit still and without asserting them permit per
sons to act, as if they did not exist, and to acquire tion of great and obvious danger. He suddenly interests and to consider themselves as owners of the left the sleigh on which he was riding, while it was property, there is no reason why the presumption in motion, in a frequented thoroughfare, and should not be raised. It is therefore well settled that within thirty feet of the defendant's horse, without the presumption that a demand has been satisfied looking back, or thinking of what might be follow- prevails as much in this court as it does at law."(3)
“Every presumption," said the Master of the Rolls lowing. His injury was the natural consequence of in Pickering v. Stamford, (4) “ that can fairly be made, his careless act. He was engaged in the sport of shall be made against a stale demand. It may arise riding upon the runners of sleighs in public streets from the acts of the parties, or the very forbearance with the consent of his parents, and if he was too
to make the demand affords a presumption either
that the claimant was conscious it was satisfied or in. young to appreciate the danger of his act he was
tended to relinquish it.”' (5) too young to engage in the sport, and his parents “The rule of presumption, when traced to its founwere negligent in permitting it. For this reason, dation, is a rule of convenience and policy, the result without considering the question whether there of a necessary regard to the peace and security of sowas any evidence of negligence of the defendant, ciety. No person ought to be permitted to lie by the court should have ruled that the plaintiff could justly determined, until time has involved them in
whilst transactions can be fairly investigated and not recover."
uncertainty and obscurity, and then ask for an inquiry.
Justice cannot be satisfactorily done when parties and In Tindley v. Salem, Massachusetts Supreme witnesses are dead, vouchers lost or thrown away, and Court, May, 1884, it was held that the plaintiff had a new generation has appeared on the stage of life, no right of action against the defendant city for in- unacquainted with the affairs of a past age, and often jury by negligence in discharging fireworks on the regardless of them. Papers which our predecessors
have carefully preserved are often thrown aside or 4th of July. The court said: “We are of opinion scattered as useless by their successors. It has been that the present case falls within the principle of truly said, that if families were compelled to preserve Hill v. Boston, 122 Mass. 344; 8. C., 23 Am. Rep. them they would accumulate to a burthensome ex332. That the ground of distinction sought to be tent. Hence statutes of limitations have been enacted established is untenable, and that the celebration in all civilized communities, and in cases not withiu of a holiday when undertaken by a city exclusively indispensable auxiliary to the administration of jus
them, prescription or presumption is called in as an for the gratuitous amusement, entertainment or in- tice. Courts of equity consider it mischievous to enstruction of the public, under the authority of the courage claims founded on transactions that took Public Statutes, chapter 28, section 13, which is ap- place at a remote period. It therefore grants no replicable to all cities alike, does not render the city lief after a great length of time. In a word the most
solemn muniments are presumed to exist, in order to liable to an action by an individual who has sus
support long possession; the most solemn of human tained a personal injury through negligence in obligations lose their binding efficacy and are precarrying out the celebration. We cannot think that sumed to be discharged after a lapse of many the Legislature, while carefully limiting the amount years.(6) which may be expended for the purpose in ques- (1) Oswald v. Leigh, 1 T. R. 270 (1786). tion, intended to impose upon cities a liability to
(2) Central Bank v. Heydorn, 48 N. Y. 260 (1872); Brock v. private actions. If such an extension of liability (1835); Tilghman v Fisher, 9 id. 441 (1840); Boyce v. Lake, 17
Savage, 31 Penn St. 422 (1858); Bellas v. Levan, 4 Watts, 295 had been intended we think it reasonable to sup- S. C. 481 (1882); Goodwyn v. Baldwin, 59 Ala. 127 (1877); Lyon pose that the Legislature would have expressed. Adde, 63 Barb. 89 (1872); Jarvis v Albro, 67 Me. 310 (1877):
Olden v. Hubbard, 34 N. J. (Eq.) 85 (1881); Boon v. Pierpont, such intention in plain terms."
28 id. 8 (1877); Downs v. Sooy, id. 55 (1877); Ray v. Pearce, 84 N. C. 485 (1881); Rodman v. Hoops, 1 Dall, 85 (1784); Hopkirk
v. Page, 2 Brock. 20 (1822); Ludlow v. Van Camp, 2 Halst. (N. THE PRESUMPTION OF PAYMENT.-I.
J.), 113; 11 Am. Dec. 529 (1823); and see Levy v. Merrill, 52
How. Pr. 360 (1876); Pattie v. Wilson, 25 Kas. 326 (1881); Cowie RULE I. Independently of a statute of limitations or v. Fisher, 45 Mich. 629 (1881); Lyon v. Odell, 65 N. Y. 28 (1875); in the absence of one, after a lapse of twenty years the Willingham v. Check, 14 8. C. 93 (1880). "A forbearance for law raises a presumption of the payment of bonds, (a) the period of twenty years, when unexplained is a fact, mortgages, (b) legacies, (c) taxes, (d) judgments, (e) and from which payment of a sum demanded ought to be prethe due execution of a trust.(f)
sumed. To cite cases in support of a proposition so firmly Even before the English statute of 304, William IV, Dennison, 3 Conn. 391 (1820).
established is quite superfluous.” Hosmer, C. J., in Lynde v. which limited the time within which an action on a
(3) Chancellor Kent in Giles v. Baremore, 5 Johns. Ch. 545 bond or other specialty might be brought, the courts
(1821). had established the presumption that where payment
(4) 2 Ves. Jr. 583 (1795). of such an instrument was not demanded for twenty
(5) And see Reeves v. Brymer, 6 Ves. Jr. 511 (1801); Motz v. years, and there was no proof of payment of interest Moreau, 13 Moore, P. C. C. 376 (1859). or any other circumstance to show that it was still in (6) Foulk v. Brown, 2 Watts, 216 (1834).