parte Christy, 3 How. 332, 11 L. 622, where rule is approved in general discussion.

Distinguished in Thompson v. Phillips, 1 Bald. 278, 281, 284, 285, F. C. 13,974, adopting rule as settled by courts of State, and holding that sale by sheriff under judgment passed title to purchaser discharged from prior judgment; Branch Bank v. Broughton, 15 Ala. 132; Lancaster v. Jordan, 78 Ala. 199, and Caldwell v. Houser, 108 Ala. 129, 19 So. 797, under statute; Scrivener v. Dietz, 68 Cal. 4, 8 Pac. 611, allowing holder of attachment lien to show facts rendering his lien superior to lien of prior mortgage; Coombs v. Jordan, 3 Bland Ch. 323, 324, 22 Am. Dec. 270, 271, and Cape Sable Co.'s Case, 3 Bland Ch. 655, holding that where lien is barred by lapse of time under statute, it cannot be revived so as to defeat intermediate lien; Gould v. Luckett, 47 Miss. 114, holding that lien of judgment rendered against husband cannot defeat widow's right of dower. Criticised in Presbyterian Corporation v. Wallace, 3 Rawle, 158, holding rule inapplicable under settled practice in Pennsylvania. Miscellaneous citations.- Cited in Mansony v. Bank, 4 Ala. 749, on point that judgment creates lien upon lands of debtor; Landes v. Perkins, 12 Mo. 261, as instance where execution issued on property of estate of deceased judgment debtor.

12 Wheat. 180-183, 6 L. 594, UNITED STATES v. TILLOTSON. Practice. Where a fact necessary to a defense is controverted, it is error to direct the jury that the matters produced in evidence are sufficient to bar an action, and that they ought to find for the refendant, p. 183.

Cited and principle applied in State v. Van Winkle, 6 Nev. 352, holding it to be error to charge jury in a criminal cause that circumstantial evidence is more satisfactory than the testimony of a single individual who swears he has seen an act committed;" Adams v. Smith, 19 Nev. 271, 9 Pac. 341, citing principal case on point that where facts are not controverted it is not error to take them from consideration of jury. Cited approvingly, but without particular application of the rule, in Robinson v. Schly, 6 Ga. 525, condemning practice in courts of assuming any fact to be established by proof in charge to jury.

Miscellaneous citations.- Erroneously cited in Smith v. Winston, 2 How. (Miss.) 609, and Wiggins v. McGimpsey, 13 Smedes & M. 541. Darden v. Lines, 2 Fla. 575, cites principal case as instance where Supreme Court rendered an opinion upon an agreed case, but refused to follow the practice in an equity cause entered in court below by consent of parties (but see dissenting opinion, 2 Fla. 586).

12 Wheat. 183-193, THORNTON v. WYNN.

Bills and notes.- An indorser not duly notified of dishonor who, knowing this, promises to pay note, waives demand and notice;

otherwise if acknowledgment of liability be made in ignorance of fact that demand had not been made, pp. 188, 189.

This rule has been applied in the following citing cases: Reynolds v. Douglas, 12 Pet. 505, 9 L. 1174, but holding that promise by guarantor to pay note qualified with condition which was not accepted does not amount to such waiver; Hyde v. Stone, 20 How. 176, 15 L. 876, holding that insertion of bill amongst debts of insolvent upon his schedule is evidence of liability to pay, which should go to jury; Sigerson v. Mathews, 20 How. 500, 15 L. 991, denying right of indorser to set up want of demand and notice upon proof that after maturity he promised to pay note, knowing it had not been presented for payment; Bank v. Johnson, 9 Ala. 624, holding that where creditor extends time of payment and surety, with knowledge of fact, agrees to waive his rights, he is liable to suit for payment without proof of consideration for waiver; Bolling v. McKenzie, 89 Ala. 475, 7 So. 659, under facts similar to those in principal case; Hazard v. White, 26 Ark. 159, holding parol evidence admissible to show waiver at time of indorsement; State V. Churchill, 48 Ark. 445, 3 S. W. 361, applying principle in holding that surety on bond does not waive objection to alteration of bond unless he have knowledge of all material facts; Breed v. Hillhouse, 7 Conn. 528, holding demand and notice unnecessary where guaranty is absolute; Camp v. Bates, 11 Conn. 494, holding in action on note that plaintiff, although he has alleged demand and notice, need not prove it if he proves waiver; Lockwood v. Crawford, 18 Conn. 374, holding that waiver will not be presumed without satisfactory proof of facts; Whitaker v. Morrison, 1 Fla. 34, 44 Am. Dec. 632, holding waiver to be presumable from part payment of note by indorser; Spann v. Baltzell, 1 Fla. 326, 46 Am. Dec. 366, holding promise to pay after notice receivable as evidence of notice; Gove v. Vining, 7 Met. 214, 39 Am. Dec. 772, holding demand and notice waived where indorser promised to pay knowing that presentment had been attempted during maker's absence; Wilson v. Huston, 13 Mo. 149, 53 Am. Dec. 141, holding waiver of demand and notice to be inferable from actions of indorser having knowledge of facts; Jaccard v. Anderson, 37 Mo. 101, but holding that waiver of notice does not imply waiver of demand; Salisbury v. Renick, 44 Mo. 559, holding proper a charge to jury that promise to pay after maturity, with knowledge of failure to demand payment, fixes liability of indorser; Bank v. Colcord, 15 N. H. 125, 41 Am. Dec. 689, holding where surety has paid interest in advance upon note, it is evidence of his assent to extension of time; Barkalow v. Johnson, 16 N. J. L. 400, holding indorser entitled to strict notice unless such notice has been clearly and unconditionally waived; Bank v. Southard, 17 N. J. L. 474, 35 Am. Dec. 522, holding void an indorser's promise to pay note after maturity, made without knowledge of his discharge by reason of failure to demand payment; Bank v. Baldwin, 17 N. J. L. 496, hold

ing indorser entitled to notice of presentment and demand, although at time of indorsement he knew of insolvency of maker; Tebbetts v. Dowd, 23 Wend. 384, 404, holding evidence admissible to show promise by indorser after maturity to pay note and statement that he knew note had been dishonored; Glaser v. Rounds, 16 R. I. 237, 14 Atl. 864, holding that, in order to charge indorser upon such promise, it must be affirmatively alleged that he knew of failure to demand payment; Ford v. Dallam, 3 Cold. 71, holding it error to charge jury that waiver might be inferred from unqualified acknowledgment of debt; Williams v. Bank, 9 Heisk. 445, holding indorser liable where he promised absolutely to pay after expressing doubt as to his legal liability to do so; Bogart v. McClung, 11 Heisk. 119, 27 Am. Rep. 741, reviewing authorities and holding mere acknowledgment of liability made with knowledge of facts sufficient to charge indorser; Schierl v. Baumel, 75 Wis. 74, 43 N. W. 726, holding burden of proof to be on person relying upon promise to show that it was made with knowledge of material facts. See also notes on this subject in 1 Am. Dec. 99, 8 Am. Dec. 304, 305, 11 Am. Dec. 682. Cited approvingly, but without particular application of rule, in Meyer v. Hibsher, 47 N. Y. 272.

Distinguished in Shirley v. Fellows, 9 Port. 302, under facts; Rittenhouse v. Kemp, 37 Ind. 261, holding surety on note discharged by extension of time given to principal without his knowledge.

Sales. Breach of warranty without an offer to return the property and rescind the contract, is not a defense to an action on a note given for the purchase-price, p. 193.

Cited and principle applied in the following cases: Elminger v. Drew,.4 McLean, 393, 394, F. C. 4,416, denying right of indorser of note to set up partial failure of consideration as defense to action on note; McMillion v. Pigg, 3 Stew. 167, denying jurisdiction of equity to enjoin execution of judgment in such case; Pulsifer v. Hotchkiss, 12 Conn. 240, denying right of maker of note to defend upon ground of partial failure of consideration, where damage sustained by such failure is unliquidated; Pottle v. Thomas, 12 Conn. 574, denying right of maker to so defend in action on note given conditionally when he himself had not complied with conditions; Marsh v. Low, 55 Ind. 274, denying right of acceptor of bill to so defend against action by payee; Gillespie v. Torrance, 25 N. Y. 310, 82 Am. Dec. 358, denying right of accommodation indorser to avail himself of breach of warranty by way of counterclaim; Vaughan v. Porter, 16 Vt. 271, holding, in action for price of patent right, that evidence was inadmissible to reduce damages by showing worthlessness of patent. Cited approvingly in discussion obiter in Duff v. Ivy, 3 Stew. 144; Kellogg v. Denslow, 14 Conn. 424; Coyle v. Baum. 3 Okl. 706, 41 Pac. 393; Brown v. Sayles, 27 Vt. 232.

Modified in Withers v. Greene, 9 How. 225, 13 L. 114, holding in action upon bill under seal that defendant could show partial failure

of consideration in mitigation of damages; Dushane v. Benedict, 120 U. S. 639, 30 L. 811, 7 S. Ct. 698, and Morse v. Moore, 83 Me. 485, 23 Am. St. Rep. 790, 22 Atl. 366, 13 L. R. A. 227, in action for goods sold and delivered, defendant could prove damages resulting from breach of warranty of quality. Distinguished in Morehead v. Gayle, 2 Stew. & P. 229, 232, where, in action on note for price of slave, defendant was allowed to show breach of warranty, slave having died before offer of return could be made; Hancock v. Tucker, 8 Fla. 443, holding rule inapplicable to case of sale of property of no value; Harrington v. Stratton, 22 Pick. 514, and Reab v. McAlister, 8 Wend. 117, asserting right of defendant in assumpsit on promissory note to prove fraud in mitigation of damages. Modified in Wade v. Scott, 7 Mo. 512, holding evidence of true value of article sold to be admissible in diminution of purchase price sued for; Carter v. Walker, 2 Rich. L. 45, under statute providing for discount in case of partial failure of consideration. Criticized in dissenting opinion, Jones v. Streeter, 8 Fla. 93. Discussed and limited in Ferguson v. Huston, 6 Mo. 418, majority applying rule to state of facts similar to those in principal case.

Sales.- If sale be absolute and there be no agreement or consent of vendor to take back the goods, the vendee is confined to action upon the warranty unless it be proved that the vendor knew of the unsoundness of the article and the vendee tendered a return within a reasonable time, p. 193.

This rule has been applied in the following citing cases: Lyon v. Bertram, 20 How. 154, 155, 15 L. 850, denying right of vendee to rescind contract for purchase of flour on ground that it was not brand called for in contract, part of flour having been delivered and used; Callanan v. Brown, 31 Iowa, 339, affirming right of purchaser of municipal bonds to sue upon warranty contained therein; Lightburn v. Cooper, 1 Dana, 275, holding vendee to be confined to action upon warranty where offer to return has been refused by vendor; Jeukins v. Simpson, 14 Me. 369, holding that where exchange is tainted with fraud upon one side, party injured cannot maintain replevin for property given by him unless he has wholly repudiated contract; Taymon v. Mitchell, 1 Md. Ch. 503, where offer to return negroes found to be unsound, made within month after sale, and as soon as unsoundness was discovered, was held to be within reasonable time; Walls v. Gates, 6 Mo. App. 246, holding that offer to return in order to work rescission must be such that vendor has only to signify acceptance in order to make property vest in him; Voor hees v. Earl, 2 Hill, 291, 38 Am. Dec. 590, and Scranton v. Mechanics' Trading Co., 37 Conn. 133, 134, denying right of vendee to recover back price paid, in action of assumpsit; Day v. Pool, 52 N. Y. 419, 11 Am. Rep. 721, affirming judgment for plaintiff in action on warranty as to quality; Turnpike Co. v. Commonwealth, 2 Watts, VOL. II-36

434, refusing to entertain suit to recover money paid for stock until stock transferred to company; Kase v. John, 10 Watts, 109, 36 Am. Dec. 149, refusing to entertain action for money had and received where vendor refused to take back property sold absolutely; Dailey v. Green, 15 Pa. St. 126, affirming right of vendor of timber to recover contract price where vendee on discovering its defects did not offer to return it and it was destroyed; Hull v. Caldwell, 3 S. Dak. 454, 54 N. W. 101, under statute adopting rule; Allen v. Anderson, 3 Humph. 583, 39 Am. Dec. 198, where facts were similar to those in principal case; Rosson v. Hancock, 3 Sneed, 436, holding vendee entitled to bring action on case for fraud in concealing defects in property sold where offer to return was made within reasonable time; Harrington v. Wells, 12 Vt. 509, denying right of vendee to rescind because price paid was exorbitant; West v. Cutting, 19 Vt. 539, applying principle in holding that where vendee returned goods to vendor as being of inferior quality and vendor agreed to replace them, in order to charge vendor on account goods should have been called for by vendee. See also note on this subject in 7 Am. Dec. 131. Cited approvingly, but without particular application of rule, in Lattin v. Davis, Lalor's Supp. to Hill. & D. 16.

Distinguished in Pope v. Allis, 115 U. S. 373, 29 L. 398, 6 S. Ct. 73, asserting right of vendee to reject goods upon delivery if not of quality stipulated in contract; Cozzins v. Whitaker, 3 Stew. & P. 329, holding offer to return unnecessary where vendee merely seeks to recover for damage sustained by breach of warranty.

Sales. Where sale is conditional and vendee is at liberty to return goods if not satisfactory, an offer to return is presumed to be accepted by the vendor, and the contract is thereby rescinded, p. 193.

Cited and principle applied as follows: Sycamore Co. v. Grundrad, 16 Neb. 537, 20 N. W. 835, where vendor's refusal to receive property back was held to relieve vendee from necessity of returning it and to establish his right to recover purchase price already paid; Colville v. Besly, 2 Den. 143, holding that where article delivered is not article contracted for, vendee may recover back purchase price without offer to return; Johnston v. Trask, 116 N. Y. 141, 15 Am. St. Rep. 395, 22 N. E. 378, 5 L. R. A. 632, citing as instance where court recognized validity of such contract; Williams v. Hurt, 2 Humph. 70, affirming judgment for plaintiff in assumpsit for money had and received where defendant accepted return of property.

Distinguished in Litchfield v. Irvin, 51 N. Y. 58, denying right of vendor to rescind contract where option was solely with vendee to determine whether transaction should be absolute sale or loan.

Miscellaneous citations.- Cited erroneously in De Armas v. New Orleans, 5 La. 176, and dissenting opinion, State v. Cumberland, etc., R. R. Co., 40 Md. 71. Cited in Garr v. Stokes, 16 N. J. L. 408, as