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court. In Livingston v. McDonald, 21 Iowa, 160, the subject we have been considering, as applied to agricultural lands, was largely discussed by Dillon, J., and certain rules deduced from the civil law were adopted by the court, which may not be in strict accord with the views herein expressed. In the case just cited it was said: "And in so holding we do not lay down any rule applicable to town or city property." The other cases are Ellis v. Iowa City, 29 Iowa, 229; Simpson v. Keokuk, 34 id. 568; Russell v. Burlington, 30 id. 266; and Bartle v. City of Des Moines, 38 id. 414. In none of these cases was the question under consideration in this case either presented or determined. Freberg v. City of Davenport. Opinion by Seevers, J.

[Decided March 20, 1884.]

WILL-REPUGNANT CONDITION BIRTH OF CHILD REVOKES.-Where property is devised in fee simple to widow, and words are added directing the disposition of what remains at her death, such words, if precatory, do not affect her title, and if intended to impose a condition, are void as repugnant thereto. See Rona v. Meier, 47 Iowa, 607, and cases cited; Benkert v. Jacoby, 36 id. 273; Williams v. Allison, 33 id. 278. As to the effect of such a condition in a deed, see Case v. Dwire, 15 N. W. Rep. 265. Under this rule of the law the widow acquires by the terms of the will all the property of the testator, without limitation or condi. tion The birth of a child of a testator operates as a revocation of a will before made. Negus v. Negus, 46 Iowa, 487; Carey v. Baughn, 36 id. 540; McCullum v. McKenzie, 26 id. 510; Milburn v. Milburn, 14 N. W. Rep. 204. An interest contingent upon the validity of the will is sufficient ground for an action to defeat the will. Alden v. Johnson. Opinion by Beck, J. [Decided March 20, 1884.]

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PARTITION SALE OF MORTGAGED PREMISES. Editor of the Albany Law Journal:

Will you kindly ask Mr. Throop for me (and to oblige many members of the profession who profess to be equally as stupid as I am) how we are to advise our clients in regard to bidding at a partition sale-where there is a mortgage, for instance, on the whole property? The answer to the question will probably be very simple for one who can at once put his eye upon the section of the Code which will answer it, but I can not.

My proposition arises thus:

Brown, Jones, Smith and Robinson own a plot of land which they bought of Doe. Doe had given a mortgage on the plot to his friend Roe, and sold to Brown, Jones, Smith and Robinson, subject to the mortgage. Then Jones brought a partition suit, and made his co-owners and Roe (the mortgagee) parties. This he may do. Code, § 1539.

Then he proceeds regularly to an interlocutory judgment, and therein he gets an adjudication that the mortgage exists, how much is due on it, etc. § 1546. And it appearing that it cannot be partitioned, he directs by the interlocutory judgment that it be sold. But the question as to liens (§ 1561) does not affect this mortgage. So far the case has run smoothly, but at

the sale Jones wants to purchase, and he goes to his attorney, and his attorney goes to the Code to see if the sale cuts off the mortgagee. What shall his attorney advise?

He turns back to section 1539, and finds that the final judgment is to determine whether the mortgagee's interest shall be reserved or passed. But he says "I will look at section 1577, and that will set me right." And he finds himself there referred to section 1557. Turning then to section 1557 he finds that the judgment is a bar except as to the persons whose rights are left unaffected by the final judgment.

It is like the old school-book game where the children write on the fly-leaf

"If my name you wish to see,

Look on page seventy-three."

On looking on page seventy-three the searcher finds further and further references, until he gives up the chase in disgust. So far as can be deduced from the Code, the purchaser buys a "pig in a poke." The final judgment decides whether the property is sold subject to the mortgage or whether it is cut off. And there is no provision for enlightening the purchaser.

This is equally so if the mortgagee is not a party, though it may possibly be said that if a purchaser buys when there is an outstanding mortgage on the whole property, and the mortgagee is not a party, he buys subject to the mortgage anyway.

But when the creditor is a party, is not the purchaser subject only to the "mercy of the court?" Yours truly, SUBSCRIBER.

PORT RICHMOND, S. I., July 17, 1884.

NOTES.

The subject of codification is now being more widely discussed than ever before. Mr. Field and Mr. Throop can no longer lay claim to the exclusive championship of codification. Able articles appear in the last number of the American Law Review by Harrington Putnam and in the Kentucky Law Reporter by Mr. Reinecke, while a pamphlet entitled "Codification in the State of New York," which may fairly lay clalm to the dignity of being a philosophical treatise on this important subject of jurisprudence, has just been issued by Weed, Parsons & Co., of Albany. The author, Mr. Robert Ludlow Fowler, a member of the New York bar, has already earned a reputation, not only as a practical lawyer, but also as one who, although in the junior ranks of the profession (for a lawyer is professionally young until he is forty), has already paid the debt he owes to his profession" by his numerous and remarkably able contributions to legal literature which have appeared from time to time in the ALBANY LAW JOURNAL. The lawyer who does not read Mr. Fowler's production cannot be said to have critically and thoroughly entered into the subject of codification, notwithstanding all that has been said and written about it heretofore.- New York Daily Transcript.— Mr. Irving Browne, the editor of the ALBANY LAW JOURNAL, a strong advocate for codification, pithily says that "No lawyer questions the authority of a statute in court. The only way we can get rid of it is by legislative repeal or modificatiou. No matter how small a majority has passed it. But every decision, especially every decision pronounced by a divided court, can always be assailed in court by a lawyer with some prospect of success; or at all events it furnishes a ground of advice to his client to take his chances of reversing the uneasily settled doctrine."-New York Daily Transcript. The ALBANY LAW JOURNAL says that Ohio is the most grasping State in the Union. It would appear that her grasp this year has not been strong enough to hold a candidate for the presidency or to retain the contract for the publication of its law reports.-Cincinnati Law Bulletin.

The Albany Law Journal.ing, filled with venom, and yet, your honor, though

MR.

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ALBANY, AUGUST 2, 1884.

CURRENT TOPICS.

[R. DAVID DUDLEY FIELD, in his 80th year has published a collection in three volumes, of his speeches, arguments and miscellaneous papers. The publication was edited by Mr. A. P. Sprague, formerly one of the editors of this journal, up to the time of his death. This collection will be of great interest to statesmen, lawyers and legal reformers. The arguments are all on questions of the greatest public importance, and the papers on codification are very interesting historically and argumentatively. There are several papers of more general interest, well illustrating the author's keen powers of humor and sarcasm, and exhibiting a remarkably felicitous style. Some addresses in French and Italian show Mr. Field's cosmopolitan experience and powers. He is not however one of those cosmopolitans who are at home everywhere except in their own country." His long and useful life, although he has done much for the world at large, has mainly been spent in the service the unpaid service of his own country. We venture to say that the laws of this country owe more to him than to any other man now living-more than to any who has ever lived, with one or two exceptions. We live too near Mr. Field in time and space fully to appreciate what our jurisprudence owes him. Other nations now have a better idea of his labors than we have, and future ages will be more apt to rate him at his true value than his contemporaries do. Known of all men, a visitor to all climes, the author of much of the ruling law of nearly all English-speaking communities, he is certainly the most influential of living lawyers, as even those who do not like him nor agree with him must admit. We recommend these volumes to all lawyers as a magazine of great argument and deep learning, with much more of interest to our generation than any similar publication for many years.

We recently referred to some newspaper stories of Judge Drummond. We have since come across one of our own Judge Grover, which we found in "Harpers," whose story department, by the way, is much better than formerly, and contains frequent good stories, of lawyers, not drawn from Joe Miller. The present story runs thus: "A very neat mot is credited to Judge Grover, in a tilt at the bar with Judge Peck. The latter had delivered a particularly rasping speech, in which the former felt compelled to reply in kind. 'You honor,' he said, 'it rained last night, and this morning, when I took my course across the fields, at almost every step I came upon some slimy, venomous creature that had issued from its hiding-place. Snails, toads, frogs, lizards, worms, snakes, vipers, adders every description of loathsome reptile was to be seen, crawlVOL. 30 No. 5.

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As he was

there seemed so many of them, all of them put together would not have made up a peck! This strikes us as more savage than "neat." Possibly Judge Peck deserved it, but if we had been in his place we should have suggested that Judge Grover had been taking his "bitters" too strong that morning. Another legal story is going the newspaper rounds, and we reproduce it: "On one of the many official excursions made by boat to Fortress Monroe and Chesapeake bay, Chief Justice Waite of the Supreme Court, Judge Hall of North Carolina, and other dignitaries of the bench were participants. When the government steamer had got fairly out of the Potomac and into the Atlantic, the sea was very rough and the vessel pitched fearfully. Judge Hall was attacked violently with seasickness. retching over the side of the vessel and moaning aloud in his agony, the chief justice stepped gently to his side and laying a soothing hand on his shoulder said: 'My dear Hall! can I do any thing for you? just suggest what you wish.' 'I wish, said the seasick judge, 'your honor would overrule this motion!" It is said that Henry Ward Beecher was once crossing the ocean in company with a seasick clerical friend, who complained bitterly of the voyage. To whom Bro. Beecher responded, "why, you know in grace we are always a-bounding." A clerical friend of ours, in crossing the English channel, remarked to a sick friend, "This is a nasty bit of water." His friend, sadly gazing over the side of the vessel, replied, "It ought to be by this

time."

We must add to our collection of recent amusing English cases the following from the Pall Mall Gazette: "What is a kiss? The question can only be answered by experience; solvitur osculando. But it is easy after a decision in the Lambeth county court yesterday to say what a kiss is not. It is not legal consideration.' A surgeon in Lambeth kissed a workingman's wife; the husband valued the kiss at five pounds, and the surgeon gave an IO U for A month after date an action was that amount. brought on this document, but the judge promptly ruled there was no consideration and gave a verdict for the defendant. Perhaps the lady was in court, and the judge may have been influenced by that. For even the poets admit that there are 'kisses and kisses;' the interesting question is whether yesterday's judgment was meant to lay down a general principle, or whether every case must be decided on its merits." Speaking of kissing, we feel bound to warn all lawyers against reading the case of Robinson v. Musser, 78 Mo. 153. No wonder that all that the court could say by way of opinion was, " Volenti non fit injuria." We are surprised that our friend Skinker reported this case. If he lived down this way, Anthony Comstock would make his life a burden to him.

The Commercial Advertiser has a very sensible article on Mr. Meigs' proposal to relieve the Federal

Supreme Court by cutting off appeals. It so well expresses our own views that we reproduce a considerable portion of it: "One of the principal reasons for the establishment of the Federal judiciary was that courts might be provided under national authority in which citizens of different States could settle their controversies, and not be forced into the tribunals of the State of one of the litigants. The reasons which existed at the time the Constitution was adopted for providing such a tribunal exist in all their force still. Local prejudice is just as strong, and the influence of it on local tribunals just as powerful as in 1787. The prejudice which was sought to be guarded against is not a thing of the past, and he who asserts that it is has no practical knowledge of the subject. To-day if city in Georgia or Tennessee desires to repudiate its indebtedness, or a town in New York attempts to follow the pernicious example, the courts of neither Georgia, Tennessee nor New York can be relied upon to do justice; and but for the Federal courts, each of these States might perpetrate a great fraud. In fact they do perpetrate it on their own citizens who are unlucky enough to hold the repudiated securities; but the Federal courts say to them 'You shall not do it to aliens or citizens of other States.' It is quite useless to theorize on the subject. The inexorable logic of events stares in the face the writer who 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 market by towns, and then allows the towns to evade payment by technicalities, it is not necessary to go further and show the wide range of rascalities which fear of the Federal jurisdiction alone prevents, When State judges are elected by the people for short terms and paid the wages of hotel clerks or bar-tenders, the people of the locality where they exercise their power can not complain because they make such judges possible; but surely residents in other States will not be willing to be turned over to their tender mercies. Instead of shortening or decreasing the jurisdiction of the Federal courts, the courts themselves should be increased in number so that the full benefit of the constitutional right should be given to the people. It is one of the functions for which the United States Government was created, that it should furnish tribunals for the litigations of the people of the several States; and it would fail in a fundamental requirement of its Constitution if it ceased to do so. It is true that the jury in a Federal court is composed of citizens of the State in which it exists, but it is not so much prejudice of juries that is sought to be guarded against as prejudice of judges; and any person who will examine the reports of the United States Courts will see that although the judges of those tribunals are citizens of States, yet the method of their selection and the fact that there is an appeal to the Supreme Court renders them practically independent of local prejudices, and loyally deferential to the decisions of the courts of the Federal system."

We say again for the twentieth time, that the people of this country are entitled to all the litigation that they want and are willing to pay for. The convenience of courts is not to be consulted. Let the people have more courts and more judges, if the present force is not enough. Courts are made for the people, not the people for the courts.

Mr. Austin Abbott is of the same way of thinking. He says in the New York Daily Register : "The radical fault of this proposal is the same which has marked many other suggestions for the same purpose, viz., it is a proposal how not to do professional business, not how to do it. The bar do not wish their facilities for business to be diminished. The country do not wish it. Clients demand more, not less facilities. No proposal to shut the doors of the courts in order to relieve the bench will be acceptable. The business is not too large, and it is going to be larger. It is going to increase in a sort of a geometrical ratio. If the courts cannot do it and do it well, the country do not look for a cure in the direction of discouraging their business, nor in any plan for diminishing the facilities for its transaction. The facilities must be made adequate, and the bar should see to it that this is done with reasonable promptitude and liberality."

IN

NOTES OF CASES.

N First National Bank of Flora v. Clark, 61 Md. 400, it was held that where a telegram is sent authorizing a draft to be drawn, and another telegram is afterward sent countermanding the authority previously given, and on the faith of the first telegram, which alone was exhibited to the cashier of the bank, a draft was discounted by the bank, the drawee cannot be held liable as acceptor, nor for a breach of promise in not accepting. The court said: "Upon these facts two questions arise, and first, is the appellee liable as acceptor? That one may be liable as acceptor of a bill, drawn in pursuance of a written promise to accept, and upon the faith of which the holder has advanced money, is well settled in this State. Lewis v. Kramer, 4 Md. 265; Franklin Bank of Baltimore v. Lynch, 52 id. 270; S. C., 36 Am. Rep. 375. In such cases however it is necessary that the bill should be drawn within a reasonable time after the promise is made, for otherwise the drawer will be presumed to have declined to act on the authority thus given, and the drawees will not be construed to have intended an indefinite liability. And second, the promise must so describe the bill that there can be no doubt of its application to it. This was so expressly held in Coolidge v. Payson, 2 Wheat. 66, and held too upon the authority of Pillans v. Van Mierop, 3 Burr. 1663; Pierson v. Dunlap, 7 Cowp. 571, and Mason v. Hunt, 2 Doug. 296. These cases were, it is true, somewhat questioned in Johnson v. Collings, 1

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the question arose in Bank of Ireland v. Archer, 11 M. & W. 382, decided in, 1843, on a parol promise to accept, Baron Park held such promise did not amount to an acceptance, although the bill was discounted for the drawer on the faith of the promise. The question was set at rest in England by statute, 19 and 20 Vict., ch. 97, § 6, which provided that no one should be bound as acceptor unless the acceptance be written on the bill and signed by the acceptor, or by some one authorized by him. In this country however the courts have generally held to 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 reason that such acceptances must necessarily affect the credit of bills, and impair their commercial value. And accordingly in Franklin Bank of Balti

more v.

Lynch, 52 Md. 280; S. C., 36 Am. Rep. 375, where the drawer was authorized by a telegram received late on Saturday to draw for $750, and in pursuance of which a sight draft for $750 was drawn by him on the Monday following, this draft was discounted by the plaintiff on the faith of the telegram thus received by the drawer, and it was held the defendant was not liable as acceptor, because the telegram did not limit or specify the terms of the draft, nor designate the time for which it was to be drawn.' Now if the American doctrine of implied acceptances is to be adhered to all, it does seem to me, with great deference, that Lynch's case falls directly within it. The authority to draw was unqualified; the telegram was received late on Saturday, and the draft was drawn on Monday following for the precise amount named in the telegram. Upon these facts, and in the absence of all proof to the contrary, there was, it seems to me, such a connection between the authority given and the draft drawn as to leave no doubt of its being the identical draft drawn in pursuance of the telegram. But be this as it may, the decision in Lynch's case is binding upon us, and being so, it is clear the appellee in this case cannot be held liable as acceptor. We come now to the second question: Is be liable for a breach of promise? And here the courts in this country have drawn a distinction between the liability of one as acceptor, and his liability on a promise to accept. And they have held that if the promise to accept, or authority to draw, does not designate and specify with sufficient certainty the bill to be drawn, and the party sued be not therefore liable as acceptor, he may be held liable on his promise to accept. Whether this is a distinction without a difference, as has been intimated by some judges, it is supported by Boyce v. Edwards, 4 Pet. 111; Russell v. Wiggin, 2 Story, 213; Carnegie v. Morrison, 2 Met. 381, and approved by this court in Lynch's case, 52 Md. 270; S. C., 36 Am. Rep. 375. These cases rest upon the principle that

the authority to draw implies a promise to accept and pay the draft, and this promise inures to the benefit of any bona fide holder who takes it on the faith of the promise. It is a liability therefore founded on agreement constituting a valid contract between the promisor and promisee, inuring to the benefit of a third party who has been induced to advance money on the faith of the agreement. The liability in such cases being founded on the promise to accept and pay the draft, this suit cannot be maintained unless there was a promise on the part of appellee to accept it at the time the draft in controversy was drawn." See note, 36 Am. Rep. 380; Whilden v. Merchants and Planters' Nat. Bk., 64 Ala. 1; S. C., 38 Am. Rep. 1; Brinkman v. Hunter, 72 Mo. 172; S. C., 39 Am. Rep. 492.

In Donahue v. Drexler, Kentucky Court of Appeals, June 3, 1884, 6 Ky. L. J. 14, A. sued B. for assault and battery but dismissed the suit settled, and he having died shortly afterward, his widow brought suit under the statute against B, claiming that her husband had died of the injuries inflicted by B. Held, that the former suit for assault and battery was no bar to her action. The court said: "The suit for assault and battery could not have survived to the personal representative, for the statute says it shall die with the person injured or injurying. It was a personal action purely for the bodily injury, not for pain, suffering and loss of service to his wife and children after the injury and before death, and the compensation which he had the right to was extinguished by his death or the settlement which he made. But his right of action for the bodily injury from the assault and battery is wholly distinct from the action which the widow and minor children may have for reparation of the injury resulting to them from the death of the injured. This statute creates a new grievance, a new cause of action, in which neither the deceased nor his estate has any interest, and for which his administrator could not sue. It is based upon the wrong to the wife and children by depriving them of their natural support and protection which the law gives them in the husband and father. The injury is to them and their rights. They have the exclusive right of action under the statute and are entitled personally to the result of any judgment that may be recovered. This is a highly penal statute passed to protect widows and orphans from pecuniary distress resulting from the acts described in the statute, and to prevent the perpetration of such acts by awarding vindictive damages in addition to or regardless of the punishment which may be inflicted by the criminal law. Whitford v. Panama R. Co., 25 Hun, 627; 23 N. Y. 469." But in Littlewood v. Mayor, 89 N. Y. 24; S. C., 42 Am. Rep. 271, it was held that a judgment for damages for personal injury by the wrongful act or negligence of another, is a bar to an action under the statute, by the personal representatives, for damages by reason of the plaintiff's subsequent death.

courts both of the United States and of England, the

period being fixed at twenty years. (2)

66

"These presumptions to be drawn by the courts in the case of stale demands," says Chancellor Kent, are founded in substantial justice and the clearest policy. If the party having knowledge of his rights will sit still and without asserting them permit persons to act, as if they did not exist, and to acquire interests and to consider themselves as owners of the property, there is no reason why the presumption should not be raised. It is therefore well settled that the presumption that a demand has been satisfied

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, let go his hold, and was run over by the defendant's sleigh following. Held, that he had no cause of action. The court said: "There was no evidence of due care on the part of the plaintiff. He voluntarily and thoughtlessly put himself in a position of great and obvious danger. He suddenly left the sleigh on which he was riding, while it was in motion, in a frequented thoroughfare, and within thirty feet of the defendant's horse, without looking back, or thinking of what might be follow-prevails as much in this court as it does at law."(3) lowing. His injury was the natural consequence of his careless act. He was engaged in the sport of riding upon the runners of sleighs in public streets with the consent of his parents, and if he was too young to appreciate the danger of his act he was too young to engage in the sport, and his parents were negligent in permitting it. For this reason, without considering the question whether there was any evidence of negligence of the defendant, the court should have ruled that the plaintiff could

not recover."

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"Every presumption," said the Master of the Rolls in Pickering v. Stamford, (4) that can fairly be made, shall be made against a stale demand. It may arise from the acts of the parties, or the very forbearance to make the demand affords a presumption either that the claimant was conscious it was satisfied or intended to relinquish it."(5)

"The rule of presumption, when traced to its foundation, is a rule of convenience and policy, the result of a necessary regard to the peace and security of society. No person ought to be permitted to lie by justly determined, until time has involved them in whilst transactions can be fairly investigated and

uncertainty and obscurity, and then ask for an inquiry.
Justice cannot be satisfactorily done when parties and
witnesses are dead, vouchers lost or thrown away, and
a new generation has appeared on the stage of life,
unacquainted with the affairs of a past age, and often
regardless of them. Papers which our predecessors
scattered as useless by their successors.
have carefully preserved are often thrown aside or
It has been
truly said, that if families were compelled to preserve
them they would accumulate to a burthensome ex-
tent. Hence statutes of limitations have been enacted
in all civilized communities, and in cases not within
them, prescription or presumption is called in as an

indispensable auxiliary to the administration of jus-
tice. Courts of equity consider it mischievous to en-
courage claims founded on transactions that took
place at a remote period. It therefore grants no re-
lief after a great length of time. In a word the most

In Tindley v. Salem, Massachusetts Supreme Court, May, 1884, it was held that the plaintiff had no right of action against the defendant city for injury by negligence in discharging fireworks on the 4th of July. The court said: "We are of opinion that the present case falls within the principle of Hill v. Boston, 122 Mass. 344; S. C., 23 Am. Rep. 332. That the ground of distinction sought to be established is untenable, and that the celebration of a holiday when undertaken by a city exclusively for the gratuitous amusement, entertainment or instruction of the public, under the authority of the Public Statutes, chapter 28, section 13, which is applicable to all cities alike, does not render the city liable to an action by an individual who has sustained a personal injury through negligence in carrying out the celebration. We cannot think that the Legislature, while carefully limiting the amount which may be expended for the purpose in question, intended to impose upon cities a liability to private actions. If such an extension of liability (1835); Tilghman v Fisher, 9 id. 441 (1840); Boyce v. Lake, 17 had been intended we think it reasonable to suppose that the Legislature would have expressed such intention in plain terms."

THE PRESUMPTION OF PAYMENT.-I.

RULE I. Independently of a statute of limitations or in the absence of one, after a lapse of twenty years the law raises a presumption of the payment of bonds, (a) mortgages, (b) legacies, (c) taxes, (d) judgments, (e) and the due execution of a trust. (f)

Even before the English statute of 304, William IV, which limited the time within which an action on a bond or other specialty might be brought, the courts had established the presumption that where payment of such an instrument was not demanded for twenty years, and there was no proof of payment of interest or any other circumstance to show that it was still in

solemn muniments are presumed to exist, in order to support long possession; the most solemn of human obligations lose their binding efficacy and are presumed to be discharged after a lapse of many years. (6)

(1) Oswald v. Leigh, 1 T. R. 270 (1786).

(2) Central Bank v. Heydorn, 48 N. Y. 260 (1872); Brock v. Savage, 31 Penn St. 422 (1858); Bellas v. Levan, 4 Watts, 295

S. C. 481 (1882); Goodwyn v. Baldwin, 59 Ala. 127 (1877); Lyon v. Adde, 63 Barb. 89 (1872); Jarvis v. Albro, 67 Me. 310 (1877); Olden v. Hubbard, 34 N. J. (Eq.) 85 (1881); Boon v. Pierpont, 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. 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 v. Fisher, 45 Mich. 629 (1881); Lyon v. Odell, 65 N. Y. 28 (1875); Willingham v. Check, 14 8. C. 93 (1880). "A forbearance for the period of twenty years, when unexplained is a fact, from which payment of a sum demanded ought to be presumed. To cite cases in support of a proposition so firmly established is quite superfluous." Hosmer, C. J., in Lynde v. Dennison, 3 Conn. 391 (1820).

(3) Chancellor Kent in Giles v. Baremore, 5 Johns. Ch. 545 (1821).

(4) 2 Ves. Jr. 583 (1795).

(5) And see Reeves v. Brymer, 6 Ves. Jr. 511 (1801); Motz v. Moreau, 13 Moore, P. C. C. 376 (1859).

(6) Foulk v. Brown, 2 Watts, 216 (1834).

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