Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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to be performed within a year as within statute of frauds.

Cited in notes in 93 A. D. 89, on what contracts are within statute of frauds
because not to be performed within one year; 3 L.R.A. 338, on applicability of
statute of frauds to contract to be performed on contingency after expiration of
Right to plead statute of frauds as defense.

Cited in Freeman v. Foss, 146 Mass. 361, 1 A. S. R. 467, 14 N. E. 141, holding
an oral contract whereby plaintiff agreed to work for defendant for two years
could not be set up by defendant in action by plaintiff before expiration of
that time, on quantum meruit for his services.

S6 AM. REP. S45, CHAFEE ▼. FOURTH NAT. BANK, 71 ME. 514.
Waiver of objection to assignment for creditors by assent or provin«:

Cnted in Lacy v. Gunn, 144 Cal. 511, 78 Pac. 30, holding that in absence of
statute . creditor waives objection to validity of assignment for creditors by
proving and filing claims thereunder; Aberle v. Schlichenmeir, 51 Minn. 1, 52
N. W. 974, denying validity of attachment by creditor assenting to voidable as-

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■ignment; Pulsifer t. Waterman, 73 Me. 233, holding receipt of dividend of
insolvent estate no abandonment of remedy, under statute, against fraodalent
grantee; Marr ▼. Washburn k ^L Mfg. Co. 167 Mass. 35, 44 N. E. 1062, dis-
charging attachment of creditor signing agreement for transfer of all of
debtor's property to trustees for pa^^ment of debts.
«By nonresident creditor.

Cited in Rosenheim v. Morrow, 37 Fla. 183, 20 So. 243, denying right of actioc
by nonresident creditor assenting to, and accepting dividends from, domestic
assignment; Greene v. A. & W. Sprague Mfg. Co. 52. Conn. 330, denying rigbt
«)f assenting Rhode Island creditor for consideration to question validity of
trustee deed for benefit of creditors valid in Rhode Island; Perley v. Mason, &4
N. H. 6, 3 Atl. 629, denying validity of attachment of foreign creditor proving
portion of claims against debtor iu insolvency, and voting for assignee; Hawidni
y. Ireland, 64 Minn. 339, 68 A. S. R. 534, 67 N. W. 73, restraining foreign credit-
or from prosecuting action for its exclusive benefit, after suit to set aside bank-
rupt's fraudulent deed brought at its request.
EfTeet of foreign assignment for creditors.

Cited in Segnitz v. Garden City Bkg. & T. Co. 107 Wis. 171, 81 A. S. R 830,
50 L.R.A. 327, 83 N. W. 327, holding that assignment for creditors under a
statute providing for discharge of the assignor, does not carry title to assignor's
personal property in another state; Harvey v. Edens, 69 Tex. 420, 6 S. W. 306,
holding voluntary assignment of Texas lands, executed in New York, valid a»
between parties, though it would be void as against creditors residing in Texas.

Cited in reference note in 37 A. R. 360, on priority between assigprnient for
creditors made in one state and subsequent attachment in another stat« where
property situated.

Cited in notes in 78 A. D. 696; 97 A. D. 679,— on extraterritorial effect of
assigrnments for benefit of creditors; 55 A. R. 136, on extraterritorial effect of
transfers of personal property; 23 L.R.A. 46, on transfer of real property out
of state by bankruptcy or insolvency proceedings or assignment for creditors;
65 L R.A. 356, on transfer of property out of the state by foreign aasignment
not opposed to lex rei sitce et fori; 23 L.R.A. 37, on discrimination in favor of
residents in voluntary assignment for creditors.
— To prevent or dissolve attachment.

Cited in Moore v. Land, Title & T. Co. 82 Md. 288, 33 Atl. 641, denying right
of resident creditor to attach local choses in action, included invalid Pennsyl-
vania assignment; Happy v. Prickett, 24 Wash. 290, 64 Pac. 628, holding as-
signment, legally made in Illinois, of property in Washington, subject to at-
tachment of resident creditor; Lipman v. Link, 20 111. App. 359, holding assign-
ment, legally made in New York, where all parties resided, operative as against
one of the creditors, attaching property in Illinois; Heyer v. Alexander, 108
III. 385, holding property in Illinois included in Missouri assignment subject
to attachment of resident creditors; Schroder v. Tompkins, 58 Fed. 672, denying
in Indiana, right to attach, by foreign creditors, goods in branch store there,
Wlonging to assigning Ohio firm, one member of which was resident; May v.
First Nat. Bank, 122 111. 551, 13 N. E. 806, sustaining validity of assignment
legally made in New York as against Massachusetts creditor attaching property
in Illinois; Barnett v. Kinney, 147 U. S. 476, 37 L. ed. 247, 13 Sup. Ct. Kep.
403, denying right of foreign creditor to attach property in Idaho, include^] in
assignment legally made in Utah; Williams v. Kemper, H. k McD. Dry Goods

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Co. 4 Okla. 145^ 43 Pac. 1148, sustaining validity of assignment made legally
in Indian Territory, conveying property in Oklahoma, where void, against at-
taching Missouri creditor; Birdseye v. Underbill, 82 Ga. 142, 14 A. S. R. 142,
2 L.R.A. 99, 7 S. E. 863, sustaining validity of legal New York assignment,
against attachment of nonresident on property in state although irregular
under Georgia statute; Woodward v. Brooks, 128 111. 222, 15 A. S. R. 104, 3
L.R.A- 702, 20 N. E. 685, sustaining validity of assignee's claim under valid
foreign assignment, not conflicting with local laws against foreign attaching
creditor of same state; Weider v. Maddojf, 66 Tex. 372, 59 A. R. 617, 1 S. W.
168, sustaining validity of foreign assignment valid when made aA against at-
tachment in state where the property is situated; Belfast Sav. Bank v. Stowe,
34 C. C. A. 229, 63 U. S. App. 14, 92 Fed. 100 (affirming 92 Fed. 90), holding
that assignment in Massachusetts takes precedence in Maine over attachment of
nonassenting Maine creditor; Owen v. Roberts, 81 Me. 439, 4 L.R.A. 229, 17
Atl. 403, holding attachment on goods of resident debtor by foreign creditor dis-
solved by assignment in insolvency within four months thereafter.

Rights of nonresident creditors of insolvent generally.

Cited in Corn Exch. Bank v. Rockwell, 58 111. App. 606, allowing New York
creditors of corporation declared insolvent there to share equally with residents
in distribution of property in Illinois; Hammond Beef & Provision Co. v. Best,
91 Me, 431, 42 L.R.A. 528, 40 Atl. 338, holding nonparticipating foreign corpora-
tion, not bound by discharge of debtor in state insolvency proceeding; Ireland
V. Globe Mill & Reduction Co. 19 R. I. 180, 61 A. S. R. 756, 29 I*R.A. 429, 32
Atl. 921, denying right to attach nonresident's stock of foreign corporation in
state where it has its officers and does business as the only legal 'residence of
the corporation is in the sovereignty creating it.

Distinguished in Catlin v. Wilcox Silver Plate Co. 123 Ind. 477, 18 A. S. R.
338, 8 L.R.A. 62, 24 N. E. 250, upholding validity of Connecticut attachment
on property of Illinois debtor, located in Indiana, against receiver claiming un-
der Illinois creditors.
Acquirement of jurisdiction of foreign corporations.

Cited in Cleveland Builders' Supply Co. v. Hoosier Cement Co. 10 Pa. Dist.
R. 491, 25 Pa. Co. Ct. 341, 31 Pittsb. L. J. N. S. 430, holding foreign corporation
which has no office or agency in state and has no business within, not subject
to judicial process therein by reason of fact that president of corporation has
a permanent domicil therein.

Il'hat constitutes a mortgage.

Cited in Cornell v. Conine-Easton Lumber Co. 9 Colo. App. 225, 47 Pac. 912,
holding that trust deeds are mortgages with power of sale; Austin v. Sprag^ue
Mfg. Co. 14 R. I. 464, holding deed of corporation to secure debt defeasible on
payment at fixed time, with power of sale and equity of redemption, a valid

86 AM. REP. 852, AMES v. JORDAN, 71 ME. 540.
Relation of master and servant.

Cited in Swackhamer v. Johnson, 39 Or. 383, 54 L.R.A. 625, 66 Pac. 91, hold-
ing employment agent not liable for damage done by laborers hired by him to
a promoter to be used in constructing a railroad, the agent having no control
over them in r.ny way.

Cited in notes in 22 A. S. R. 461, on when relation of master and servant

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exists; 64 A. S. R. 75, on true test of master's liability for servant's acts;

37 L.R.A. 81, on position as master of servants delegated to perform work con-
tracted for by their master; 13 L.R.A.(N.S.) 1125, on who is responsible for
acts of driver furnished with a hired* vehicle.

Master^s liability for servant's negligence.

Cited in reference note in 20 A. S. R. 403, on master's liability for servant's
negligence or incompetency.

Cited in note in 8 L.R.A. 464, on li|bility of master for injuries by negligence
of servant.

36 AM. REP. 85S, WHITE ▼. CARR, 71 ME. 555.

Advice of counsel as defense in action for malicious prosecution.

Cited in Steed v. Knowles, 79 Ala. 446; Connelly v. White, 122 Iowa, 391, 98
N. W. 144; Watt v. Corey, 76 Me. 87; Monaghan v. Cox, 155 Mass. 487, 31
A. S. R. 555, 30 N. E. 467, — on fact that part acted on advice of counsel as a
defense in action of malicious prosecution.

Cited in notes in 26 A. S. R. 144, 145; 18 L.R.A.(N.S.) 61, 71; 16 E. R. C
750; 25 L. ed. U. S. 117, — on advice of counsel as defense in action for mal-
icious prosecution.

— Biased or interested counsel.

Cited in Merchant v. Pielke, 10 N. D. 48, 84 N. W. 674; Adkin v. Pillen, 136
Mich. 682, 100 N. W. 176, — holding the advice of an attorney who is dire^ly
interested in the subject matter of the controversy is no defense to an action for
malicious prosecution; Perrenoud v. Helm, 66 Neb. 77, 90 N. W. 980, holding
in action for malicious prosecution court erred in refusing an instruction on
fact that attorney to whom defendant went for advice was not unbiased and
that defendant knew it.


Who may set up usury as defense.

Cited in Importers' & T. Nat. Bank v. Littell, 47 N. J. L. 233, holding maker
of note could not set up as a defense that plaintiff discounted the note for
payee at a rate greater than the legal interest.

RIglit to recover payments made on usurious contract.

Cited in Lealos v. Union Nat. Bank, 9 N. D. 60, 81 N. W. 56, holding one of
two joint makers of a note cannot recover for usury where the other maker
paid the note.
RIglit of national bank to purchase negotiable paper.

Cited in First Nat. Bank v. Sherburne, 14 111. App. 566; Prescott Nat. Bank
V. Butler, 157 Mass. 548, 32 N. E. 909,— on authority of national bank to pur-
chase promissory notes; Black v. First Nat. Bank, 96 Md. 399, 54 Atl. 88, on
whether act of bank amounted to a purchase of or a discount of notes.

Cited in note in 16 L.R.A. 224, on discount of bill or note as including buymg
and selling.

— Right to set up ultra vires.

Distinguished in United German Bank v. Katz, 57 Md. 128, holding indorser
of a note could not set up as a defense in action on by bank that the bank ex-
ceeded its powers in discounting it.

Disapproved in First Nat. Bank v. Smith, 8 S. D. 7, 65 N. W, 437, holding

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want of authority in a national bank to purchase a negotiable note cannot be
used by the maker as a defense in action upon it.
Usury by national banks.

Cited in notes in 56 L.R.A. 679, on extent of invalidity generally from char-
ging or taking of usury by national bank; 56 L.R.A. 693, on who may maintain
action against national bank for taking usury where interest is actually paid;
56 L.R.A. 705, on prerequisites to suit against national bank for twice amount
of illegal interest paid to it; 105 A. S. R. 508; 23 L. ed. U. 8. 197, — on usury
by national banks.
Construction of nsnry statutes.

Cited in McBroon v. Scottish Mortg. & Land Invest. Co. 153 U. S. 318, S8
L. ed. 729, 14 Sup. Ct. Rep. 852, on the construction of statutes regulating

Admissibility of parol evidence.

Cited in Slingluflf y. Andrew Volk Builders' Supply Co. 89 Md. 557, 43 Atl.
759, holding parol not admissible to establish some of terms of a guaranty;
Scott V. Baltimore A 0. R. Co. 93 Md. 475, 49 Atl. 327, holding conversation
evencing the intentions of the parties not admissible where there is a writ-
ten contract; Horner v. Beasley, 105 Md. 193, 65 Atl. 820, holding parol evi-
dence inadmissible to show terms of contract where there is a written contract;
Welz v. Rhodius, 87 Ind. 1, 44 A. R. 747; Sentman v. Gamble, 69 Md. 293, 14
Atl. 673 (dissenting opinion),— ^n inadmissibility of parol to vary a written •

Cited in note in 6 L.R.A. 42, on admissibility of parol evidence to explain
patent ambiguity.

36 AM. ROP. 864, STOXEBREAKEK T. ZOIililOKOFFER, 52 BiD. 154.
Interest of life tenant in timber or graTel.

Cited in Keniston v. Gorrell, 74 N. H. 53, 64 Atl. 1101, holding life tenant
entitled to estate for life in proceeds derived from the sale of timber on the
estate, severed without her fault; Potomac Dredging Co. v. Smoot, 108 Md. 54,
69 Atl. 507, holding life tenant of land bounding on watercourse not authorized
to commit waste by carrying away gravel from shore.
• Cited in reference note in 21 A. S. R. 934, as to whom income belongs.

Cited in note in 106 A. S. R. 307, on character of timber as affecting right to

■Construction of will.

Cited in Abell v. Abell, 75 Md. 44, 23 Atl. 71, on the construction of the
terms of a will.

How remainders are to be construed.

Cited 5n Bunting v. Speek, 41 Kan. 424, 3 L.R.A. 690, 21 Pac. 288, holding
no remainder will be construed to be contingent which may consistently with
the words used and the intention expressed be deemed vested; Gindrat v. West*
«m R. Co. 96 Ala. 162, 19 L.R.A. 839, 11 So. 372, distinguishing between vested
iJid contingent remainders.

Cited in note in 29 L.R.A.(N.S.) 1124, 1163, on rule in Shelley's case.
Construction of word "children."

Cited in reference note in 63 A. D. 551, on construction of word "ciiildren**
In deed.

Am. Rep. Vol. XVn.— 70.


by Google


Cited in note in 12 L.RJL(N.S.) 294, on "children" as a word of purehaae
or limitation where children's estate is in remainder.

86 AM. REP. 866, JONES ▼. SYER, 52 MD. 211.

Validity of assignment for creditor tending to delay liquidation.

Cited in Kansas City Packing Co. t. Hoover, 1 App. D. C. 268, holding as-
signment void which by its terms operated to hinder and delay creditors;
Bernard v. Barney Myroleum Co. 147 Mass. 366, 17 N. E. 887, holding an as-
signment to a creditor fraudulent to the others where the object was not to
secure a debt but prevent the attachment of the property by other creditors.

Cited in reference notes in 69 A. D. 196, on validity of assignment for benefit
of creditors giving discretionary power to trustee to sell on credit; 42 A. R.
364, on validity of assignment for benefit of creditors containing provision that
assignee may do whatever best.

Validity of deed of trust.

Cited in DeWolf v. Sprague Mfg. Co. 49 Conn. 282, nolding on facts deed of
trust void as to nonassenting creditors; Wells-Stone Mercantile Co. v. GroTer,
7 X. D. 460, 41 L.R.A. 252, 75 N. W. 911; Landeman v. Wilson, 29 W. Va- 702,
2 S. E. 203, — on when court will construe deed of trust void or fraudulent as to

36 AM. REP. 867, MURRAY ▼. McSHANE, 52 MD. 217.
Liability for injury to party rightfully in street.

Cited in Poling v. Ohio River R. Co. 38 W. Va. 646, 24 L.R.A. 215, 18 S. E.
782, on right of traveler on street or highway to recover for injuries received
through fault of another; Havre De Grace v. Fletcher, 112 Md. 662, 77 Ail.
114, holding city liable for injury to child on street caused by fall of barrels
negligently permitted to be stacked alongside street.

Cited in reference notes in 42 A. R. 601, on liability for injury to person
traveling in highway; 50 A. R. 743, on liability of city for injury from materials
it permits to be left in the street.

Cited in notes in 69 A. D. 737, on liability of owner of premises for injuries
and nuisances to passers-by; 20 L.R.A.(N.S.) 761, on liability of municipality
for defects or obstructions in streets.

Distinguished in Walker v. Marye, 94 Md. 762, 61 Atl. 1054, holding abutter
not liable where plaintiff injured by falling over water pipe projecting from
defendant's premises, but which he did not put there or have any control over;
Mclntire v. Roberts, 149 Mass. 460, 14 A. S. R. 432, 4 L.R.A. 619, 22 N. E. 13.
holding occupier of building not liable to traveler on street who was pushed
through an unguarded elevator well near street; Jackson v. Greenville, 72 Miss,
220, 48 A. S. R. 653, 27 L.R.A. 627, 16 So. 382, holding adult merely using
sidewalk near his boarding house for sole purpose of playing with a dog couhi
not recover for injury received because of defects.
— Injury by falling objects.

Cited in Sinkovitz v. Peters Land Co. 5 Ga. App. 788, 64 S. E. 93, holding
that person walking on street may recover from owner for injury caused by
fall of glass from building; Mitchell v. Brady, 124 Ky. 411, 124 A. S. R. 408,
13 L.R.A.(N.S.) 761, 99 S. W. 260, holding owner of building liable for death
of traveler in street caused by being struck by an iron water pipe falling from
wall of building, its fastenings having become defective; Walter v. Baltimore

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Electric Co. 109 Md. 513, 22 L.R.A.(N.S.) 1178, 71 Atl. 953, holding that fall
of wire of electric lighting company strung over street, is prima facie evi-
dence of negligence of company; Waller v. Ross, 100 Minn. 7, 117 A. S. R. 661,
32 L.R.A.(N.S.) 721, 110 N. W. 262, 10 A. & E. Ann. Cas. 715, holding party
walking along sidewalk might recover for injuries received by the falling
of an awning on her.

Cited in reference notes in 54 A. R. 772, on tenant's liability after surrender
for fall of fence near sidewalk; 10 A. S. R. 40, on liability of owner for in-
juries from dangerous walls and buildings; 123 A. S. R. 571, on duty and lia-
bility of landowner to adjoining proprietor as to falling tools, bricks, and ma-

Cited in notes in 12 L.R.A. 190, on liability of abutting property owner for
injuries caused by materials falling in the street; 34 L.R.A. 659, on personal
liability for injui:y to person in street by falling walls or building.

Distinguished in Strasburger v. Vogel, 103 Md. 85, 63 Atl. 202, holding
plaintiff could not recover for injuries received by being struck by a brick
falling from defendant's chimney while he was passing street, no neglect being
fihown on part of defendant to keep chimney in repair.

Duty devolving on owner of premises to keep in reasonably safe con-

Cited in Rollestone v. Cassirer, 3 Ga. App. 161, 69 S. E. 442, on duty owed
by owner of premises to licensees to keep in a reasonably safe condition.

Cited in reference note in 1 A. S. R. 490, on liability of landowner for in- '
juries to persons coming on premises.
Loitering in public way as contributory negligence.

Cited in Whitewright v. Taylor, 23 Tex. Civ. App. 486, 67 S. W. 311, hold-
ing party injured because of defective bridge over which he was passing did
not forfeit protection from injury by mere fact that he stopped and leaned
on railing of to converse with another person; Kaples v. Orth, 61 Wis. 631,
21 N. W. 633, holding mere fact that injured party sat down to rest on steps
leading^ from street did not necessarily render her guilty of contributory

Se AM. REP. 371, HISS ▼. BALTIMORE & H. PASS. R. CO. 52 MD.

Additional servitudes on fee of country highway.

Cited in Green v. City & Suburban R. Co. 78 Md. 294, 44 A. S. R. 288, 28
Atl. 626; Lonaconing Midland & F. R. Co. v. Consol. Coal Co. 95 Md. 630,
53 Atl. 420, — holding the construction of electric railroad along country road
might be authorized without providing for compensation; Baltimore County
Water & Electric Co. v. Dubreuil, 105 Md. 424, 9 L.R.A.(N.S.) 684, 66 Atl.
439, holding the laying of water mains in a country highway the fee to which
is in the abutting land owners could not be authorized without making com-
pensation to owner.
— In city streets.

Cited in Ehilaney v. United R. & Electric Co. 104 Md, 423, 65 Atl. 46, hold-
ing legislature might grant the right to lay street railway in city street with-
out making compensation to adjoining owners.

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Cited in reference notes in 14 A. a R. 569; 41 A. R. 290, — on riglit of lot
owner to compensation for use of street by street railway; 1 A. S. R. 319, m
laying horse railroad track in street as new servitude.

Cited in notes in 4 A. 8. R. 402, on damages for establishing railroad on
highway where fee of highway is in the public; 4 A. 8. R. 403, on damagn
for establishing railroad on highway where fee of street is in abutting land-
owner; 25 A. 8. R. 478, on right to construct railroad in street without com-
pensation to abutting landowners; 4 L.RJL. 624, on use of public streets for
liorse railways; 17 L.R.A. 477, on street railways as additional burden to ad-
joining property.

Legislative authority OTer streets.

Cited in note in 4 L.R.A. 623, on sovereign authority of l^slature over dty

Taking of property for public use.

Cited in note in 16 A. 8. R. 613, on what is a taking of property for public use.

86 AM. R£P. 875, FRANKLIN BANK T. LYNCH, 52 MD. 270.

Authority to draw as amounting to acceptance of bill.

Cited in First Nat. Bank v. Clark, 61 Md. 400, 48 A. R. 114, on telegrsm
authorizing the drawing of draft on sender of as amounting to an acceptance
of draft; Merchants Bank v. Winter, Newfoundl. Rep. (1897-1903) 30; Bank
of Montreal v. Thomas, 16 Ont. Rep. 503, — holding that telegram authorizing
party to draw, no time being mentioned, will be presumed to mean at sight.

Cited in reference notes in 38 A. R. 2, on acceptance of draft by telegram;
14 A. 8. R. 257, on person authorizing and subsequently countermanding draft
by telegram as acceptor.

Cited in note in 4 E. R. C. 242, on acceptance of bill of exchange.
Right to maintain action for breach of promise to Indorse bill or note.

Cited in Smith v. Easton, 54 Md. 138, 39 A. R. 355, holding an action will
lie for a breach of promise to indorse a note.
Authority to draw bill as enuring to holder of It.

Cited in Brown v. Ambler, 66 Md. 391, 7 Atl. 903, holding a letter authoriz-
ing a party to draw a bill of lading would enure to every bona fide holder of
the draft.

86 AM. R£P. 880, LANGE v. WAGXER, 52 MD. 810.
Speculative profits as an element of damages.

Cited in Gossage v. Philadelphia, B. & W. R. Co. 101 Md. 698, 61 Atl. 692,
holding plaintiff in action for destruction of vessel could not recover profits
that he might have made as damages.
Necessity that damages be the natural consequences of the wrongful act.

Cited in Hutchins v. Munn, 28 App. D. C. 271, on right to recover damages
which is the natural consequences of the wrongful act.

Cited in notes in 47 A. R. 381, on proximate cause; 41 A. R. 53, as to when
injury is too remote to recover therefor.
Damages for injury to animals.

Cited in note in 36 A. S. R. 831, on liability for deterioration in value of

Duty to avoid danger.

Cited in Carroll Springs Distilling Co. r. Schnepfe, 111 Md. 420, 74 AtL 828,

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holding party bound to use reasonable exertion to avoid damage from another's
wrongful act.

Determination of proximate and remote canse.

Cited in note jn 36 A. S. R. 857, on functions of court and jury in de-
termination of proximate and remote cause.

86 AM. REP. 384, CUIiBERTSON t. SMITH, 52 MD. 628.
Sufficiency of consideration for contract.

Cited in note in 60 A. S. R. 434, on necessity and sufficiency of expression
of consideration of contract.

— Of guaranty.

Cited in Highland v. Dresser, 35 Minn. 345, 29 N. W. 55, holding a con-
sideration need not be expressed in guaranty distinct from that expressed in
principal contract where guaranty is embodied in the principal contract.
Status of endorser of sealed bill.

Cited in Seigman v. Hoffacker, 57 Md. 321, holding the indorsement of a
sealed bill does not make the indorser a drawer.

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